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

A

aws

Registered Users (C)
Folks,

Within the last 2-3 days, a lot of furor has been generated due to that recent article on I-140 portability. I bet different lawyers will have different opinion as that news has not yet appeared in form of an official CIS memo.

In such an uncertain state, why not enquire with the right authority, i.e., the CIS itself?
I did it myself y'day evening and after spending @ 30 min. on a phone call and talking to an immigration officer at CIS, this is what I found out:

1) After 6 months in pending, I140 withdrawal will have no bearing if the beneficiary is able to provide proof of similar occupation.
2) AC21 law can be used to change employment/employers in similar field as long as the new job is similar to that described in labor certification.
3) Also, she told the different lawyers have different way of interpretation of AC21, so one should always check with CIS!

Sounds good? :) , for me, it did.

I suggest the following:

1) Let atleast 5-10 of us take some time today and tomorrow and call USCIS and speak to an immigration officer. (do this atleast 2-3 times each person)
2) Clarify what is their latest info./stand on the AC21 as regard to I140 status
3) Consolidate all of our responses (atleast 15-20 nos.) and then see what is the majority in opinion.

I think it is worth the effort. If we do this, by end of 8/27, I think we will have nothing in dark.

Who is supporting me in this effort?
 
aws said:
Who is supporting me in this effort?
Click to expand...

Good idea aws.
But how far can we trust what the immigration officer says on phone. We have no proof in case the 140 is denied after 180 days. Usually the immigration officers and the customer support personnel are trained to end the conversion asap to increase their productivity. If you are on the phone with the IO or a CustRep they would tend to close the call faster and would agree on whatever we say.

We can't be guaranteed unless we see a official memo from USCIS.

hth
dyno
 
aws,

Good job. But do you know - you cannot base your decisions on what officer is saying. There has to be a memo/law in case something goes wrong. Lots of lawyers are also of the same opinion but unless absolutely nessecary no one advices to change job before 140 approval.

There has been lots of discussion in this regard in past in various threads and I think only me and naanshi had the understaning that you may change without 140 approval. And that too only if old employer is willing to support you on RFEs.

By the way did you ask those officers who will reply 140 RFEs if there is one! One more point - call TSC - they will tell you just opposite stuff!

Anyway - indeed good job and definitely innovative. It gives a feel from service centers' side.
 
Last edited by a moderator:
AC21 & I140

Soon something should come from USCIS regarding AC21 and I140 & I485.

My Guess is:

USCIS will process I140 within 6 months.
AC21 can be used after 6 months of filing I140& I485, If no RFE has been issued on I140.

Just my guess.

-Ashok
 
This was the summary of the meeting

August 04, 2004 ... 8/4/04 - Summary of AILA-USCIS Issues from JULY 31, 2004 Board of Governors Meeting

140 Portability Under 106(c)

AILA has taken the position that the statute merely requires an I-140 and an I-485 to be pending for 180 days in order for a beneficiary to be "portable" with regard to a change of employers or a change of jobs with the same employer to a same or similar occupation. Previous memos issued by CIS had inferred that an I-140 must be approved and that the I-485 must then be pending for 180 days before portability attaches. The new General Counsel of the CIS, former AILA member, Robert Devine, and William Yates appear to have agreed with AILA that an I-485 beneficiary may
"port" to a new employer or position if the I-485 has been pending for 180 days, regardless of whether or not the I-140 has been approved. The subsequent withdrawal of the I-140 by a petitioner or denial of the I-140 petition by the Service Center would have no impact on the beneficiary's status in the U.S. CIS is now drafting a formal memo to this effect. There is no official memo yet


I got a responce from Murthy LAW firm....for those familiar with her site
Thank you for your eMail. This is an issue that AILA has been working on for quite some time. While there have been discussions and agreements in principle, there is nothing official in writing at this time. It is always uncertain the amount of time that it will take to obtain a memo with a changed policy. Sometimes, the memos appear quite quickly while, in other situations, you will have oral statements by the government but no memo for a year or more. At this time, while this is a generally favorable sign, there can be no action that should be taken in reliance upon these discussions. The previous memo requiring the approval of the I-140 is still the policy.

If there are any official announcements on this matter or a new memo, we would include it in our weekly MurthyBulletin.

Dana J. Delott*

Attorney at Law

The Law Office of Sheela Murthy, P.C.
Dictated by Attorney and transcribed.
 
Hi Jharkhandi,

Why are you leaving me behind in the understanding which you say only you and naanshi have got.

I am fighting my case directly with USCIS, without any attorney, for last 5 months, after 140 pending approval was withdrawn by the employer in March this year.

So far, I have been successful and my case is still open.

I am on same boat buddy. With this new possible ruling, the happy days for such employers would be gone soon.

Jharkhandi said:
aws,

Good job. But do you know - you cannot base your decisions on what officer is saying. There has to be a memo/law in case something goes wrong. Lots of lawyers are also of the same opinion but unless absolutely nessecary no one advices to change job before 140 approval.

There has been lots of discussion in this regard in past in various threads and I think only me and naanshi had the understaning that you may change without 140 approval. And that too only if old employer is willing to support you on RFEs.

By the way did you ask those officers who will reply 140 RFEs if there is one! One more point - call TSC - they will tell you just opposite stuff!

Anyway - indeed good job and definitely innovative. It gives a feel from service centers' side.
Click to expand...
 
Jharkhandi said:
aws,

Good job. But do you know - you cannot base your decisions on what officer is saying. There has to be a memo/law in case something goes wrong. Lots of lawyers are also of the same opinion but unless absolutely nessecary no one advices to change job before 140 approval.

There has been lots of discussion in this regard in past in various threads and I think only me and naanshi had the understaning that you may change without 140 approval. And that too only if old employer is willing to support you on RFEs.

By the way did you ask those officers who will reply 140 RFEs if there is one! One more point - call TSC - they will tell you just opposite stuff!

Anyway - indeed good job and definitely innovative. It gives a feel from service centers' side.
Click to expand...

If the employer is supporting you any time you change the job you should not have the problem. that was the opinion of the most of the people. It was the idea of sending AC-21 letter before the approval of I-140 was in the question.
Even after this memo if you need the original I-140 employer support the respond the RFE then this memo is of no use. Only relief might be he would not withdrawing the I-140 pending or approved after the six months.

For that matter even I changed employer year before I-140 approval and just 10 days after I-485. I did not inform the BCIS about the job change until I-140 approval. I did not have the employer support was fully aware of the fact that if company related RFE comes then it was doomed.
 
Good discussion. If you think logically, after you change the job, who needs old employer's support? And which employer will support you in case if you get RFE regarding Company Financial Ability, after you leave them. AC 21 law was passed only to help us not to harm us. I don't think you need your previous employer's support and also I still believe that after 180 days of I-485 pending, you will get the portability and no need to worry about I-140 approval.

As you all know, both myself and GC_GoneCase have changed employer before I-140 approval and sent AC21 letter to USCIS. Our cases are still open. I am not going to change my mind till I see denial letter.

naanshi
 
naanshi said:
Good discussion. If you think logically, after you change the job, who needs old employer's support? And which employer will support you in case if you get RFE regarding Company Financial Ability, after you leave them. AC 21 law was passed only to help us not to harm us. I don't think you need your previous employer's support and also I still believe that after 180 days of I-485 pending, you will get the portability and no need to worry about I-140 approval.

As you all know, both myself and GC_GoneCase have changed employer before I-140 approval and sent AC21 letter to USCIS. Our cases are still open. I am not going to change my mind till I see denial letter.

naanshi
Click to expand...

I'm thinking of doing the same...naansi, How long your case has been pending for 140 and 485 ?
Mine is EB2 Concurrent ND : 07/07/03 (both) LUD : 07/10/03 (both)
and no updates whatsoever...I'm really tired of waiting...
Have you guys got any opinion form Rajiv Khanna regarding this ?

Your suggestios are most welcome..

Thanks
 
manib04 said:
I'm thinking of doing the same...naansi, How long your case has been pending for 140 and 485 ?
Mine is EB2 Concurrent ND : 07/07/03 (both) LUD : 07/10/03 (both)
and no updates whatsoever...I'm really tired of waiting...
Have you guys got any opinion form Rajiv Khanna regarding this ?

Your suggestios are most welcome..

Thanks
Click to expand...

Since Sept 2003. RFE issued for I-140 in April 2004. Changed Job in May 2004. RFE replied in July 2004. Still Waiting.

naanshi.
 
naanshi said:
Since Sept 2003. RFE issued for I-140 in April 2004. Changed Job in May 2004. RFE replied in July 2004. Still Waiting.

naanshi.
Click to expand...

RFE was responded after u left your employer, did your employer tell you to support you and would not widraw I140 after you leave him ?
 
truenblue said:
RFE was responded after u left your employer, did your employer tell you to support you and would not widraw I140 after you leave him ?
Click to expand...

I made it very clear that if I don't join with my client, I will loose my project (which I was working as a consultant for more than 4 years) and requested them to help me. Me and my attorney struggled a lot to get the documents from them. Of course, they did not give all the documents and that is reason why my attorney thinks that I have 50-50 chance.

Actually even if they did not want to support, I was about to change the job. And I am fully prepared that if some thing goes wrong, I will be going back to my country, instead of loosing my project in a Billion dollar company and working for a consulting company which is not doing good.

In life, No risk, No gain and it is not a bad idea to take some calculated risk some times.

naanshi.
 
naanshi said:
I made it very clear that if I don't join with my client, I will loose my project (which I was working as a consultant for more than 4 years) and requested them to help me. Me and my attorney struggled a lot to get the documents from them. Of course, they did not give all the documents and that is reason why my attorney thinks that I have 50-50 chance.

Actually even if they did not want to support, I was about to change the job. And I am fully prepared that if some thing goes wrong, I will be going back to my country, instead of loosing my project in a Billion dollar company and working for a consulting company which is not doing good.

In life, No risk, No gain and it is not a bad idea to take some calculated risk some times.

naanshi.
Click to expand...
I would say this is a big risk .. of course it all depends on your risk taking abilities.

I would advise to try to stick if possible .. of course if you do not have a current job with the sponsoring company then there is no point of staying with him as it may actually harm you, especially if you end up on the bench (without pay) and then get a 485 RFE for your pay stubs etc.

If it is a question of earning another 20K / year, I would rather wait .. just my 2 cents.
 
naanshi said:
I made it very clear that if I don't join with my client, I will loose my project (which I was working as a consultant for more than 4 years) and requested them to help me. Me and my attorney struggled a lot to get the documents from them. Of course, they did not give all the documents and that is reason why my attorney thinks that I have 50-50 chance.

Actually even if they did not want to support, I was about to change the job. And I am fully prepared that if some thing goes wrong, I will be going back to my country, instead of loosing my project in a Billion dollar company and working for a consulting company which is not doing good.

In life, No risk, No gain and it is not a bad idea to take some calculated risk some times.

naanshi.
Click to expand...

naansi,

Have you been using your EAD from the time you have left your old comany ?
In my case I have only 7 more months left for the 6 year stay in US. My company is not doing good..they got some denials on 140 on ability to pay...
My current client is offering a permanent position and I think I can use my EAD.
My old employer will not withdraw the 140 petition.
Can I can ask some other company to do the H1 for me to maintain the H1 status ?
or Is that I can use either EAD or H1 ?
Assuming I joined my client and if there is a RFE based on ability to pay , which company has to address that ? Old company or new company ?
I'm thinking of getting Mr.Rajiv Khanna's help to proceed therafter....

I'd appreciate your suggestion ..

Thanks in advance...
 
naanshi,
You are taking AC-21 portabilty to next level. I appreciate your bravery and mindset. Actually, every one in this forum closely watching developments on you case. I'm also thinking of following your foot-steps.
So, watch out for lot of questions from boards :)-


would you plz let us know, what documents you need to AC-21 portability?

1. Copy of approved labor of original employer?
2.1 I-140 Receipt notice - in case of I-140 not approved in 6 months before switching to New employer? right?
2.2 I-140 RFE if USCIS sent RFE for 'Ability to Pay'

3. I-485/EAD receipt notices?

Can we use EAD to switch to new employer?
 
Mani,
Yes, I am using EAD. Remember, one can use AC21 till his/her I-485 is pending for more than 180 days. You cannot use after I-485 petiton is denied. I feel if your company is not doing well and already your company got some denials for company financial ability then better you try for AC21. But don't take my words. Consult with your attorney.

After joining with new company and sent AC21 letter to USCIS, if you get RFE who has to reply? Old or new employer?. This is the million dollar question now for everybody and I don't have answer for this.

Lohith,

I still don't know what I did was bravery or foolishness, but I did not have option to save my project/job. I really feel AC21 law was passed only to help us. So I went for it.

I sent following documents. But you can check with AC21 forum for complete information.

1. AC21 letter signed by myself (Org)
2. Employment Letter from my new employer (Org)
3. I-485 receipt notice (copy)
4. Last 3 years W2 form (copy)
5. Last 3 months pay stubs (copy)
6. EAD card (copy)

You may use EAD for working with any emoployer. But only risk is if you don't have H1B status and if your I-140 and/or I-485 got denied, then you will be out of status. It is always good and safe to maintain the H1B status.

Don't act without consulting a good immigration attorney.

naanshi.
 
naanshi said:
Mani,
Yes, I am using EAD. Remember, one can use AC21 till his/her I-485 is pending for more than 180 days. You cannot use after I-485 petiton is denied. I feel if your company is not doing well and already your company got some denials for company financial ability then better you try for AC21. But don't take my words. Consult with your attorney.

After joining with new company and sent AC21 letter to USCIS, if you get RFE who has to reply? Old or new employer?. This is the million dollar question now for everybody and I don't have answer for this.

Lohith,

I still don't know what I did was bravery or foolishness, but I did not have option to save my project/job. I really feel AC21 law was passed only to help us. So I went for it.

I sent following documents. But you can check with AC21 forum for complete information.

1. AC21 letter signed by myself (Org)
2. Employment Letter from my new employer (Org)
3. I-485 receipt notice (copy)
4. Last 3 years W2 form (copy)
5. Last 3 months pay stubs (copy)
6. EAD card (copy)

You may use EAD for working with any emoployer. But only risk is if you don't have H1B status and if your I-140 and/or I-485 got denied, then you will be out of status. It is always good and safe to maintain the H1B status.

Don't act without consulting a good immigration attorney.

naanshi.
Click to expand...

Hi Naanshi,

Surprising I got my status update on my 485 stating that they have sent notice to appear for finger printing.

I think I'll get it on Monday...I'll update with furthur info...

Also how soon we need to update INS with AC21 ?

A month from joining new employer ? any time frame ?

Thanks a lot.
 
manib04 said:
Hi Naanshi,

Surprising I got my status update on my 485 stating that they have sent notice to appear for finger printing.

I think I'll get it on Monday...I'll update with furthur info...

Also how soon we need to update INS with AC21 ?

A month from joining new employer ? any time frame ?

Thanks a lot.
Click to expand...

It is up to you. There is no regulation in this. I sent the AC21 letter on the date of Joining.
 
please do not digress

Folks,

I have full respect for your concerns/questions. Before posting them, please ensure that you are posting them in the right thread.
Look at the title of this thread. Please do NOT DIGRESS.
Our issue in this thread is really serious.
-aws
 
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