Doubtful @ I-140 portability? Let's do this..

candie your letter to the ombudsman is good. what r ur case details ? and let us know if you get any response to your letter.
 
Hello GC Leke,

Another officer a few days back navigated me to the same page and said the same that the law does not require 140 to be approved so you can change employer. Did he mention anything about "Adjudicators Manual" to you? I was not a 100% sure what he meant, but the IO I was talking to said that even though the law as publically posted on the website does not metion anything about I 140 approval, the "Adjudicator's Manual" requires that I 140 be approved. He said he is not an Adjudicator so he cannot comment for sure that how the actual officer's who decide on these cases will interpret the difference between the law as posted on the website and Adjudicator's manual.

When I asked him that can the new employer answer any RFE's on the 140 after 180 days, he began to get pissed off that if your employer has filed a frivolous application then you cannot expect me to answer hypothetical questions. Also, he said your new employer has to of course file a new application...I DON't KNOW WHAT HE MEANT BY THAT.

Then he asked me my state, name and case number and obviously I had no choice but to keep the phone down.

My two attempts at this have given me a definite NO the first time and a very hazy YES the second time...I will probably give another attempt next week, but since the officer also said "have you called here before"..I am little apprehensive about calling again and will have to hear you guy's experience...

The whole conversation left me confused...

Cheers,
Prabhu :)

GC Leke Jao said:
Friends,
Just called CS 800 number and managed to get an IO on the line.
The conversation went as follows :

Me : Good afternoon officer, I need some clarification on AC21 rule and how it applies to concurrently filed cases.

IO : Let me direct you to info on our website.
http://uscis.gov/lpBin/lpext.dll/in...w-22417?f=templates&fn=document-frame.htm&2.0

SEC. 106. SPECIAL PROVISIONS IN CASES OF LENGTHY ADJUDICATIONS.
(c) INCREASED JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS- (1) Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is amended by adding at the end the following new subsection:
“(j) JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE- A petition under subsection (a)(1)(D)for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.”.
(2) Section 212(a)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)(A))is amended by adding at the end the following new clause:
“(iv) LONG DELAYED ADJUSTMENT APPLICANTS- A certification made under clause (i) with respect to an individual whose petition is covered by section 204(j) shall remain valid with respect to a new job accepted by the individual after the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the certification was issued.”.

Me : Officer, when the AC21 rule was out, there was no concurrent filing, so it was understood that 140 was approved, but now my case 140/485 both are pending more than 180 days and I would like to change jobs.

IO : No need to worry, as long as you have a similar job from the new employer you are ok. If I process this kind of a case I would be putting more emphasis on the LC. If the LC is valid from the DOL, then I would be ok.

Me : Officer, my current employer is saying that he would withdraw the I-140. Is there is a risk involved ?

IO : As I told before my emphasis would be on the LC. Even at the time of interview I would be asking for the LC validity. You said you are willing to move to a new employer. Is the job similar to your current one.

Me : Yes officer.

IO : Then don't worry. Just make sure the LC would be still valid. LC depends on the DOL.

Me : Is it ok if I change to a different city for the new employer even though it comes under same Service center.

IO : I would look for the same DOL. But that's just me. I've directed you to the info. and that's what the law says. But since everything is based on the LC I would put more emphasis on LC.
Good Luck. You will be alright.


Friends,
I'll be moving to a different city but the same Service center for the new job. So for my case it is still a grey area. That is why I plan to transfer my H1 and keep this GC aside. If approved good, if not I give a damn. I'll start it afresh. I still have 3 more years to go on H1. Enough of these headaches.
I'll go stay with my spouse (both are working in different states) and live happily.

Good luck to all.
Click to expand...
 
I think it is time to stop this discussion

I think everyone is pretty clear about this matter: it is a grey area, there is 50/50 chance. All depends on luck. When you have to take advantage of AC21, you have no other choice but to test your luck anyway.
So why not just stop bothering them and let it go? If they get mad, the chance will be 0.
 
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USCIS should change the damn law asap so we can change job after 180 days without I140. Now, USCIS is holding the concurrent applications. It is very unfair. American really does not 'think very carefully' or 'does not give a damn' how it can affect our life. Even holding for a few days longer may make a 'huge different' whether one can stay or not. People should talk to authority and get the damn law/memo clarify or change. This concurrent filing is killing us.

My opinion, talking to IIO is just not very constructive. It all depends on the individual adjudicator (e.g. his mood on a particular day). I don't have time to restart the damn process from the beginning and go back to 'the jail' for years. I will be very old when I release from 'the jail'!

I don't understand why we cannot change a job and keep the damn GC process. If we change 'better jobs', we pay 'more tax', US treasury get more income. Amercia gets better people to do the job and the country gets stronger. We are happy to stay and give more. Everyone wins.

USCIS makes the process so slow, keep us in the jail so long. After releasing from the jail, most skills are outdated.
 
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Reply to Prabhudeva

Hi Prabhu,
The IO didnot mention about the "Adjudicator's manual". Even though he was nice to me in responding, he was clear in his statement that different IOs may interpret the law differently. And whatever he said, in the end, he made sure to say, "but that's just me".
This proves that it is a case to case basis.
I think we have to prioritize what we have in hand and go ahead with life.
I will be taking the chance and I'll keep all of you in the loop.
Calling IOs probably can give us some confidence, but cannot assure us anything.
BUT THAT's JUST MY OPINION :)
 
prabhudeva said:
Hello GC Leke,

Another officer a few days back navigated me to the same page and said the same that the law does not require 140 to be approved so you can change employer. Did he mention anything about "Adjudicators Manual" to you? I was not a 100% sure what he meant, but the IO I was talking to said that even though the law as publically posted on the website does not metion anything about I 140 approval, the "Adjudicator's Manual" requires that I 140 be approved. He said he is not an Adjudicator so he cannot comment for sure that how the actual officer's who decide on these cases will interpret the difference between the law as posted on the website and Adjudicator's manual.

Prabhu :)
Click to expand...

Prabhu,

Did you talk to the immigration officer or customer support person? In other words, did you get your phone call transferred to somewhere, before talking to the officer? If this person is not an adjudicator, how come he knows about what is written in the adjudicator's manual??


naanshi.
 
Stop multiple calls

I am not sure what could be one's expectation in placing multiple calls on the same issue. Are you going to feel comfortable if in your 3rd call you can a definite YES, after getting a definite NO and a "hazy" YES in the first 2 calls? Surely, if you make the change & things don't work out later, you can't use your conversation in the third call to make an arguement for your case.
If someone loses a job, they clearly have no option other than changing employer - but I don't think after waiting for months (years?), somebody would take a chance with this.
In my opinion, multiple calls is taking away precious time from immigration officers who otherwise would be working on someone's case, or answer to someone's pressing problem.
 
phans,

by the way ur case details are very close to mine 140/485 concurrent, eb2, rd 02/17/04. lets keep track of each others cases. do u know of an concurrent eb2 case approved around that time ?
 
Agree w/ Phans

Calls by multiple people have given us more information about AC21 as it applies to concurrent filers, but as Phans mentioned, we don't have a clear cut answer. This will be the case till they come out with some sort of memo- the likelihood of which is close to nill.
 
Yes the call did get transferred...and both the times that I called they said they are immigration officers but they don't actually make decision on AOS cases...they are certainly more knowledgable than CS reps...

naanshi said:
Prabhu,

Did you talk to the immigration officer or customer support person? In other words, did you get your phone call transferred to somewhere, before talking to the officer? If this person is not an adjudicator, how come he knows about what is written in the adjudicator's manual??


naanshi.
Click to expand...
 
Phans,

your opinion sounds logicial but for someone like me it makes sense to call multiple times as firstly, you get multiple versions (btw thats what the IO told me when I called, I am sure you have heard too many versions on this issue :)secondly, sometime early on in the thread it was agreed that we were going to make calls over the next few weeks and discuss our experience on this issue and thats what we are doing, thirdly, for someone in my situation hanging by a slipping thread to their job and with all kinds of rumours around its an attempt to contact the concerned authorities to gauge the best of the situation...and lastly, these people are not apparently the officers who take decisions on our cases so we are not using their CPU time anyway so to say, apparently these are 8086 based processors anyway so a little time here and there doesnt matter much :)

I am sure u also feel stuck as your name handle suggests, and I am sure my friend, u undertstand the situation..

cheers,
prabhu :)

phans_gaya_re said:
I am not sure what could be one's expectation in placing multiple calls on the same issue. Are you going to feel comfortable if in your 3rd call you can a definite YES, after getting a definite NO and a "hazy" YES in the first 2 calls? Surely, if you make the change & things don't work out later, you can't use your conversation in the third call to make an arguement for your case.
If someone loses a job, they clearly have no option other than changing employer - but I don't think after waiting for months (years?), somebody would take a chance with this.
In my opinion, multiple calls is taking away precious time from immigration officers who otherwise would be working on someone's case, or answer to someone's pressing problem.
Click to expand...
 
I scheduled an Infopass appointment at an immigration office to discuss the portability issue. I asked about teh state of portability using AC-21 in the context of 180 + days of concurrent 140/485 processing w/o 140 approval. The initial response was a bit amazing: "I don't know that AC-21 is. I dont know what you are talking about"
Mind you, this was not on the phone, but at the office. Then upon asking some colleague at the next window, the officer remarked, "Ok, you can change jobs if 485 has been in process for more than 180 days, even if 140 has not been approved"
Well, as usual the gut feeling I got was that this is a stock reply, w/o the IO's understanding exactly the whole portability process.
 
as i said before also and although i am waiting for my 140 to approval , the fact is that the law whenever it was formulated is not our problem it does not state 140 approval as a requirement, in other words it will be debatable if tommorrow someones application is denied based on the 140.
 
Agree with iknowitall

Law can be interpreted by anyone in anyway until unless it is clearly stated. I/we (who are +ve on moving before 140 approval) can question it if cases are denied on this basis.
By the way one question I have is can my new company file for a new LC while my current I-140/485 fall into a grey area. Just wanted to utilize that waiting time. Please let me know.

Thank You.
 
i am sure you can , its a different lc from a different employer shouldn't be a problem as long job profile and qualifications are real.
 
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