I-140 is in the category of Outstanding Researcher (employer sponsored case) and I-485 has been pening for over 18 months. currently working on EAD for the sponsoring employer since H-1B expired recently and the attorney did not bother to extend H-1B. in this case, is it safe to change employers? what's the risk if changing service centers too? thanks.
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employer sponsored case to change job
- Thread starter tonic
- Start date
electrospray
Registered Users (C)
I'm in the same boat. Since the I-140 was done without an LC, I'm wondering how "same or similar" job functions are defined if we are to use AC21 to change employers. Your comments/suggestions will be much appreciated.
i've consulted with my attorney and others. as far as i understand, it's basically fine since I-140 is approved and there were successful cases. but there is some risk because the regulation does not clearly quote the case of OR category in change of employers. i was strongly recommended to wait until i hear something from the BCIS since it seems they already started processing 03-02 cases. i've decided to remain with current employer although the offer is pretty attractive.
genejock2000
Registered Users (C)
This might help
While it is true that the AC21 regulations are not out, the letter of the law states that the underlying labor certification OR I-140 are remain valid with respect to a new job in the same or similar category once the I-485 has been pending for more than 180 days. I had a I-140 approved under the OR designation and changed jobs. Both my attorney and the company's attorney (one of the top immigration lawyers from White and Case) did not think that there would be any problems as long as the new employer provides an appropriate job description that satisfies the "same or similar" criterion. I also happended to have an EB1-EA I-140 approved (so this was my backup) which is not dependent on a job offer, but which was approved after I applied for I-485. After changing jobs, I sent a letter with the address change, as well as letter providing a copy of the EA I-140 approval notice as an additional evidence of eligibility. I was approved with no RFE under the originally filed OR category. My advice would be to take the opportunity, and work with your new employer to provide an suitable job description if and when you get an RFE. At the same time, try not to burn bridges with your current employer. If I were you, I'd take this opportunity now as It is much more dicey to change jobs after green card approval due to the "intent" issue.
While it is true that the AC21 regulations are not out, the letter of the law states that the underlying labor certification OR I-140 are remain valid with respect to a new job in the same or similar category once the I-485 has been pending for more than 180 days. I had a I-140 approved under the OR designation and changed jobs. Both my attorney and the company's attorney (one of the top immigration lawyers from White and Case) did not think that there would be any problems as long as the new employer provides an appropriate job description that satisfies the "same or similar" criterion. I also happended to have an EB1-EA I-140 approved (so this was my backup) which is not dependent on a job offer, but which was approved after I applied for I-485. After changing jobs, I sent a letter with the address change, as well as letter providing a copy of the EA I-140 approval notice as an additional evidence of eligibility. I was approved with no RFE under the originally filed OR category. My advice would be to take the opportunity, and work with your new employer to provide an suitable job description if and when you get an RFE. At the same time, try not to burn bridges with your current employer. If I were you, I'd take this opportunity now as It is much more dicey to change jobs after green card approval due to the "intent" issue.
electrospray
Registered Users (C)
Genejock2000,
Thanks for sharing with us your experience. I think you are right on in saying that the problems associated with changing jobs right AFTER getting GC are probably WORSE than invoking AC21 BEFORE getting GC. One question for you: do you have any suggestions regarding the timing of informing your 485 lawyer (the one technically worked for you but was paid by your old employer)? Did you tell them upfront or after your made the switch? Thanks again.
Thanks for sharing with us your experience. I think you are right on in saying that the problems associated with changing jobs right AFTER getting GC are probably WORSE than invoking AC21 BEFORE getting GC. One question for you: do you have any suggestions regarding the timing of informing your 485 lawyer (the one technically worked for you but was paid by your old employer)? Did you tell them upfront or after your made the switch? Thanks again.
genejock2000
Registered Users (C)
Answers
Question : Thanks a lot for your advice. did you have to change service centers, or could you avoid case transfer if moving from east to west? why did you have your own attorney in addition to the company attorney?
Response: I moved from NY to NJ, so there was no service center change. I wanted to do an EA petition originally, but my company's lawyer thought it was safer to do an OR (less stringent requirements), but he very graciously recommended an good lawyer (who used to work for him at White and Case) as I was intent on pursuing the EA option on my own, as this requires no job offer. The company was going through layoffs (though I was reasonably sure that I was safe), and I used this as my reasoning for pursuing the EA. We filed for AOS based on the OR petition, and the EA petition was approved a few days later (doh!).
One question for you: do you have any suggestions regarding the timing of informing your 485 lawyer (the one technically worked for you but was paid by your old employer)? Did you tell them upfront or after your made the switch? Thanks again.
Response: I was very upfront with them. I actually called my company lawyer a week before I officially accepted the offer and laid it all out on the table. Again, I used the possibility of layoffs as the rationale. He was very careful in his response, stating specifically that he could not say anything that could be construed as encouraging me to leave due to the conflict of interest, but did explain my options. I also talked to my lawyer, who also did not forsee any problems. In my case, having an EA petition approved gave me more leeway even if for some reason the AC21 argument was rejected. I then informed my company and then officially informed the company layer. I left on very good terms with my previous employer - I got the original reciept notice for the I-485, as well as a copy of the I-485 application, which no problems whatsoever. The company lawyer agreed to forward any RFE to my lawyer. I did not inform INS of the job change as per both lawyer's suggestion - they were both emphatic that there was no requirement to do so, and my company lawyer specifically felt that anything that you send to the INS, if it does not have a check attached or was not in response to an RFE, had virtually no chance of making it to your file. I did consult Murthy's office, who advised me to inform VSC of the job change. I sorta took the middle road by sending in a letter with a copy of the EA approval notice (which apparently never made it to my file), as I was approved under the OR category. I did file AR-11 and send a letter to VSC re address change (which they did get).
Question: AC21 is automatically invoked once you change employers, but you do not have to inform INS of your changing jobs and you only present employment letter from current/new emoployer when it is requested through RFE or upon interview. Is this true?
Response: Re informing INS, I was pretty conflicted about it, with both the company and my lawyer saying that there was no need, but with Murthy advising that we should. In my case, Murthy's advice was to send a letter saying that I was substituting the OR petition with the EA petition as the underlying basis for the I-485. Again, there is no official way of informing the INS other than to send a letter, which has little chance of making it to the file. Murthy suggested that I should call VSC and talk to an IIO so that they can make a notation that a letter had been sent informing them of the substitution of I-140's (or job change in your case). I decided that this approach was iffy at best, and probably would only serve to delay things (esp since the EA was approved for CP, not AOS). As I said, I took the middle road sending the letter with a copy of the EA approval notice, calling it additional evidence of eligibility.
Glad to be of help.
Question : Thanks a lot for your advice. did you have to change service centers, or could you avoid case transfer if moving from east to west? why did you have your own attorney in addition to the company attorney?
Response: I moved from NY to NJ, so there was no service center change. I wanted to do an EA petition originally, but my company's lawyer thought it was safer to do an OR (less stringent requirements), but he very graciously recommended an good lawyer (who used to work for him at White and Case) as I was intent on pursuing the EA option on my own, as this requires no job offer. The company was going through layoffs (though I was reasonably sure that I was safe), and I used this as my reasoning for pursuing the EA. We filed for AOS based on the OR petition, and the EA petition was approved a few days later (doh!).
One question for you: do you have any suggestions regarding the timing of informing your 485 lawyer (the one technically worked for you but was paid by your old employer)? Did you tell them upfront or after your made the switch? Thanks again.
Response: I was very upfront with them. I actually called my company lawyer a week before I officially accepted the offer and laid it all out on the table. Again, I used the possibility of layoffs as the rationale. He was very careful in his response, stating specifically that he could not say anything that could be construed as encouraging me to leave due to the conflict of interest, but did explain my options. I also talked to my lawyer, who also did not forsee any problems. In my case, having an EA petition approved gave me more leeway even if for some reason the AC21 argument was rejected. I then informed my company and then officially informed the company layer. I left on very good terms with my previous employer - I got the original reciept notice for the I-485, as well as a copy of the I-485 application, which no problems whatsoever. The company lawyer agreed to forward any RFE to my lawyer. I did not inform INS of the job change as per both lawyer's suggestion - they were both emphatic that there was no requirement to do so, and my company lawyer specifically felt that anything that you send to the INS, if it does not have a check attached or was not in response to an RFE, had virtually no chance of making it to your file. I did consult Murthy's office, who advised me to inform VSC of the job change. I sorta took the middle road by sending in a letter with a copy of the EA approval notice (which apparently never made it to my file), as I was approved under the OR category. I did file AR-11 and send a letter to VSC re address change (which they did get).
Question: AC21 is automatically invoked once you change employers, but you do not have to inform INS of your changing jobs and you only present employment letter from current/new emoployer when it is requested through RFE or upon interview. Is this true?
Response: Re informing INS, I was pretty conflicted about it, with both the company and my lawyer saying that there was no need, but with Murthy advising that we should. In my case, Murthy's advice was to send a letter saying that I was substituting the OR petition with the EA petition as the underlying basis for the I-485. Again, there is no official way of informing the INS other than to send a letter, which has little chance of making it to the file. Murthy suggested that I should call VSC and talk to an IIO so that they can make a notation that a letter had been sent informing them of the substitution of I-140's (or job change in your case). I decided that this approach was iffy at best, and probably would only serve to delay things (esp since the EA was approved for CP, not AOS). As I said, I took the middle road sending the letter with a copy of the EA approval notice, calling it additional evidence of eligibility.
Glad to be of help.