Exact Steps for AC21

I have just read the following on 2nd paragraph of page 3 of HQBCIS 70/6.2.8-P dated Aug 04, 2003. This can be found at http://uscis.gov/graphics/lawsregs/handbook/I140_AC21_8403.pdf which states:

"Accordingly, if the employer withdraws the approved Form I-140 on or after the date that

the Form I-485 has been pending 180 days, the approved Form I-140 shall remain valid under

the provisions of §106(c) of AC21. It is expected that the alien will have submitted evidence to

the office having jurisdiction over the pending Form I-485 that the new offer of employment is

in the same or similar occupational classification as the offer of employment for which the

petition was filed. Accordingly, if the underlying approved Form I-140 is withdrawn, and the

alien has not submitted evidence of a new qualifying offer of employment, the adjudicating

officer must issue a Notice of Intent to Deny the pending Form I-485. See 8 CFR

103.2(b)(16)(i). If the evidence of a new qualifying offer of employment submitted in response

to the Notice of Intent to Deny is timely filed and it appears that the alien has a new offer of

employment in the same or similar occupation, the BCIS may consider the approved Form I-140

to remain valid with respect to the new offer of employment and may continue regular

processing of the Form I-485. If the applicant responds to the Notice of Intent to Deny, but has

not established that the new offer of employment is in the same or similar occupation, the

adjudicating officer may immediately deny the Form I-485. If the alien does not respond or fails

to timely respond to the Notice of Intent to Deny, the adjudicating officer may immediately deny

the Form I-485."

So changing employer using AC 21 is safe. Infact I am doing it next week.

Cheers,

IJ
 
Friends,

I am a newbie for this forum, here is my situation please suggest me..

Currently working in H1 for a company X and they sponsered my GC through X.LLC (which is sister company of the company X). Now my 140 in EB2 approved with a PD June 2005 and also 180 have been passed.
How safe I am to use AC21.

1. Since I don't work for GC sposering company, can I swith to Company other than X or X.LLC without any legal problems.
2. Do I need to work for X.LLC after GC approved even If I switch to different company?
3. If I dont switch company and started using EAD for current H1-B company X, Do I need to do any notification to USCIS (Either AC21 or something sort of)
4. I don't have any copy of labor/140's, is it mandatory to have these documents to use AC21.
5. What is the EB2 PERM title for "Senior Software Engineer" job title.

Thanks for your suggestion in advance.
 
Interview experience

Cheekoo said:
How was your interview? wat did they ask you ?
I am just waiting for some action on my GC. Its so frustrating.
Did you ever use AP to travel ?
I will also be applying for "5th EAD" to be elidgeable for Guiness Book of world record. FBI responded to my email that check was completed back in 2004.
... waiting
Click to expand...
Please see the following thread for my interview experience at Dallas district office:
link:http://boards.immigration.com/showthread.php?t=183501&page=1&pp=15
I have used AP many times to travel. Absolutely no problem except the minor irritation called secondary inspection where you have to wait for 30 minutes to 2 hours (depending on the airport) to get your AP stamped.
 
StillAlive said:
Friends,

1. Since I don't work for GC sposering company, can I swith to Company other than X or X.LLC without any legal problems.

>> as per recent memos, yes. As per my understanding of Immigration Laws, I can say you never had any intension to work for X.LLC. This can constitute a fraud. This is Theory. I have not come across anyone getting GC in a similar situation.

2. Do I need to work for X.LLC after GC approved even If I switch to different company?

>> subject to interpretation. As per recent memos, no.

3. If I dont switch company and started using EAD for current H1-B company X, Do I need to do any notification to USCIS (Either AC21 or something sort of)

>> As per Memos, you have to report to USCIS. There are other members who have different opinion. I reported change of employer promptly, But my case got denied anyway.

4. I don't have any copy of labor/140's, is it mandatory to have these documents to use AC21.
>> No. you need the I-140 Receipt Number, a print out from Website. If you have description of Job, Qualifications, Salary as on the Labor Certification, it should be generally sufficient. As an applicant, you are not expected to have a copy of Labor Certification as it belongs to a company.


5. What is the EB2 PERM title for "Senior Software Engineer" job title.

Thanks for your suggestion in advance.
Click to expand...

For the sake of arguement, in my opinion, the point in AC21 memo that talks about a person using AC21 without ever working for the GC sponsoring company goes against the intension of the Law.

Every Law has an "intension". This is derived from the discussions that happened in congress/senate/commitees during the course of creation of that law. That is how judges decide whether something is legal or not.

If you go by the intension of AC21 Law on change of employers, it is intended to help those who are not able to change jobs or prosper in life because 485 is getting beyong a reasonable timeframe. The law is not intended to to help those who never worked or not working for a GC sponsoring company.

If a person applied for 485/EAD and is still not working for the GC sponsoring company, then it can be argued that the person never intended to work for the GC sponsoring employer.

Immigration laws have lot of words like "intent", "dual intent". All these are somewhat gray areas and cannot be ignored.
 
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Thank you very much for your wonderfull comments, I hope this helps me lot to decide my next move.

One last question...

If my employer allows me to put me in Payroll of GC sponsering company.
I hope I don't have to use AC21 right, I can work on EAD directly under Company X.LLC.

Are there any hard and fast rules, how long I should work for GC sponsering company from now before I safely move to next company using AC21, since I already completed 180 days throu non GC sponsering company.

GreenCardVirus said:
....
If a person applied for 485/EAD and is still not working for the GC sponsoring company, then it can be argued that the person never intended to work for the GC sponsoring employer.

Immigration laws have lot of words like "intent", "dual intent". All these are somewhat gray areas and cannot be ignored.
Click to expand...
 
StillAlive said:
Thank you very much for your wonderfull comments, I hope this helps me lot to decide my next move.

One last question...

If my employer allows me to put me in Payroll of GC sponsering company.
I hope I don't have to use AC21 right, I can work on EAD directly under Company X.LLC.

Are there any hard and fast rules, how long I should work for GC sponsering company from now before I safely move to next company using AC21, since I already completed 180 days throu non GC sponsering company.
Click to expand...

180 days is generally acceptable limit to be safe if you work X.LLC.

Again, as per memos you dont have to work for X.LLC. As per law, you must have atleast some provable "intent" to work for X.LLC between the period starting the day your labor was filed till the point 485 is approved.

Knowlegeble people like "United Nations" on this forum have repeatedly said that Memos can change. USCIS is not obligated to go by what old memo said. What he bascially meant was that if you changed jobs based on what current memo said, and in future if they changed the memo and your job change does not conform to the rules in this latest memo, USCIS is not obligated to follow the old memo.
 
Thanks GreenCardVirus

GC is indeed a really big virus as your name suggest, it eats our head as well as others :D

GreenCardVirus said:
180 days is generally acceptable limit to be safe if you work X.LLC.
...
Click to expand...
 
If you go to Murthy Chat and see the latest chat transcript you will see a question about AC21. reads something like this

there are USCIS memos that recognize that a person may never have worked for the GC-sponsoring employer, both the employer and the employee, must have intended from the beginning for the employee to work for the employer both at the start of the process and at each stage of the GC filing and avoid fraud allegations

USCIS can decide to deny a green card case if there is not proof that the job offer and intent to accept the job offer are genuine
 
Invoking AC21 for the third time. Please advise!!!

Hi,

I was working for Company A for a long time which has filed for my Greencard. After I-140 approval and waiting for more than 190 days of I-485 filing, I have joined Company B in the same/similar job functions. Afterwards I have joined Company C in the same/similar job functions after working for more than 200 days with Compnay B. I have currently working for Company C for more than 450 days. Now I have received an offer for a permanent position with the same/similar job functions from Company D. AC21 papers are filed with INS in respect of Compnay B and Compnay C.

My priority has become current on EB2 during April Visa Bulletin.

I would like to know whether it is ok to switch to Company D.

Thanks in advance for your inputs!

GrimJudge
 
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GrimJudge said:
Hi,

I was working for Company A for a long time which has filed for my Greencard. After I-140 approval and waiting for more than 190 days of I-485 filing, I have joined Company B in the same/similar job functions. Afterwards I have joined Company C in the same/similar job functions after working for more than 200 days with Compnay B. I have currently working for Company C for more than 450 days. Now I have received an offer for a permanent position with the same/similar job functions from Company D. AC21 papers are filed with INS in respect of Compnay B and Compnay C.

My priority has become current on EB2 during April Visa Bulletin.

I would like to know whether it is ok to switch to Company D.

Thanks in advance for your inputs!

GrimJudge
Click to expand...

They could question your "intent" to seek a "permanent" job.

How many days is considered to be safe to show that a job is "permanent"? No one knows and it is subject to different interpretation by different officers.
IF PD is current and you are not stuck in things like Name Check, if I were you, I'd be patient.
 
How long does it take for AC21 to get approved ?

I am in a similar situation- how long does it take for the paperwork to get approved and do people usually start employment in the meantime?????
I really need some guidance and my lawyers are not being that helpful!!!!
 
ImmigrationQs said:
I am in a similar situation- how long does it take for the paperwork to get approved and do people usually start employment in the meantime?????
I really need some guidance and my lawyers are not being that helpful!!!!
Click to expand...

There is nothing called as AC21 approval. You change job, send in AC21 for new job and pray that they make note of it. There should be no problem if your I140 remains intact.
 
AC21 vs Retrogression

Nice writing Can_Card!

I would like to hear your thoughts on my case-
485 and 140 applied concurrently.
140 approved.
It’s May 2006, and I have met the 180days limit.

It appears that I should be eligible for a job change. However, according to this response from my attorney, I am not sure if it is safe to assume that USCIS won’t have a problem with job change.

--------------------
With respect to changing jobs, since your I-140 has been approved, once your I-485 has been pending for 180 days, the law is that you can change employers and still retain permanent residency as long as you are still employed in the "same job occupation" at the time that permanent residency is approved. However, this law did NOT anticipate visa numbers retrogressing. I would be very reluctant to advise you that you can change jobs UNTIL your visa category is current AND then the I-485 pends for 180 days.
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can_card
I dont understand why people are making so much complications in AC21. It is a simple pocess, not a rocket science. It is not required to have any attorney representation.

The best thing is, change the job, (if you are qualified) and do nothing.

The very important thing in changing the employer is, make sure that the new job has same or similar duties/functions, preferably same title (no company give same title for same jobs.. therefore it does not matter .. USCIS wants to make sure that an engineer has not become a teacher) and same or more salary.

Satisfy yourself that the new job is the same/similar to previous job. Once you satisfied, change the job and do NOTHING.

If USCIS issues a RFE regarding job change, in future, then only send the only the evidences what exactly they are asking for. In most cases, (if previous employer does not do harm) they do not care if you changed job. Also, there is no rule, regulation or memo issued by USCIS that one must inform the job change.

Volenterly informing the job change may lead some problem or it may irritate 485 adjudicators if you send so much documents regarding AC21 job change, as they did not asked for.


Nice writing Can_Card!

I would like to hear your thoughts on my case-
485 and 140 applied concurrently.
140 approved.
It’s May 2006, and I have met the 180days limit.

It appears that I should be eligible for a job change. However, according to this response from my attorney, I am not sure if it is safe to assume that USCIS won’t have a problem with job change.

--------------------
With respect to changing jobs, since your I-140 has been approved, once your I-485 has been pending for 180 days, the law is that you can change employers and still retain permanent residency as long as you are still employed in the "same job occupation" at the time that permanent residency is approved. However, this law did NOT anticipate visa numbers retrogressing. I would be very reluctant to advise you that you can change jobs UNTIL your visa category is current AND then the I-485 pends for 180 days.
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