GINNU or anyone Pl. Help!! Spoke to attorney..485 approved..sponsor company shut down

[616athem]

I have an approved 485. I applied concurrently in the EB1(outstanding researcher) category and my company was shutdown after 8 months of filing. Now I am working for a different company and did not get a chance to send AC21 letter before the 485 approval, since the approvals (140/485) were concurrent (Aug 04). The situation is further complicated since I am leaving my current employer and starting a new job next month. I was wondering if there would be any problem during the citizenship. I spoke to my attorney and she has suggested filing the AC21 after starting with the new employer. Furthermore she advised me to go ahead for stamping before AC21 filing. I am not sure if filing AC21 is such a good idea since AC21 is relevant only until 485 is approved. They said that the issue may come up during the citizenship. As far as I know, after 485 approval the person should go back to the sponsoring employer to work indefinitely or have an intention to go back. In my case I would love to go back, but the company does not exist anymore. What do you guys think? Please respond. My current feeling is not to file AC21 since that may mess up things. I am going for stamping on the 17th.

I would be thankful for any suggestions.

 

[ginnu]

I have an approved 485. I applied concurrently in the EB1(outstanding researcher) category and my company was shutdown after 8 months of filing. Now I am working for a different company and did not get a chance to send AC21 letter before the 485 approval, since the approvals (140/485) were concurrent (Aug 04). The situation is further complicated since I am leaving my current employer and starting a new job next month. I was wondering if there would be any problem during the citizenship.
---May be
I spoke to my attorney and she has suggested filing the AC21 after starting with the new employer.
----- as you stated that your I-485 is approved from many lawyer sites I read that AC21 can be used only before I-485 approval, I am not sure becase AC21 final regulations are not published till date. even if your I-485 is approved nothing wrong taking AC21 letter when you go for Stamping the officer may update the USCIS computer system with your new employer info. you will only know when you go for stamping and if officer does the above then you are fine and also update others what officer said or told you for others info.
Furthermore she advised me to go ahead for stamping before AC21 filing. I am not sure if filing AC21 is such a good idea since AC21 is relevant only until 485 is approved.
--- I have the same view
They said that the issue may come up during the citizenship. As far as I know, after 485 approval the person should go back to the sponsoring employer to work indefinitely or have an intention to go back. In my case I would love to go back, but the company does not exist anymore.

What do you guys think? Please respond. My current feeling is not to file AC21 since that may mess up things. I am going for stamping on the 17th.
----- do what you feel better .
Good Luck!!
.

 

[usnycus]

Get affidavit/letter from ex-employer/colleagues stating that original sponsor is no longer in business. Keep that handy when/if you apply for citizenship and show them in case issue shows up.

Many have gone through citizenship process successfully without working a day after GC approval. Certain things are beyond our control and this is one of them.

BTW, you have five more years to go for the citizenship process. In the mean time relax and enjoy PR status.

I have an approved 485. I applied concurrently in the EB1(outstanding researcher) category and my company was shutdown after 8 months of filing. Now I am working for a different company and did not get a chance to send AC21 letter before the 485 approval, since the approvals (140/485) were concurrent (Aug 04). The situation is further complicated since I am leaving my current employer and starting a new job next month. I was wondering if there would be any problem during the citizenship. I spoke to my attorney and she has suggested filing the AC21 after starting with the new employer. Furthermore she advised me to go ahead for stamping before AC21 filing. I am not sure if filing AC21 is such a good idea since AC21 is relevant only until 485 is approved. They said that the issue may come up during the citizenship. As far as I know, after 485 approval the person should go back to the sponsoring employer to work indefinitely or have an intention to go back. In my case I would love to go back, but the company does not exist anymore. What do you guys think? Please respond. My current feeling is not to file AC21 since that may mess up things. I am going for stamping on the 17th.

I would be thankful for any suggestions.

 

[616athem]

Stamping Done will file AC21

I have finished my stamping and as suggested by my attorney I will be sending an AC21 letter to the uscis after I change to the third company.

 

[TheRealCanadian]

I have finished my stamping and as suggested by my attorney I will be sending an AC21 letter to the uscis after I change to the third company.

Why? The AC21 statute says nothing about notifying USCIS about changes in employer. To send a letter now only is not necessary and just invites trouble. Do what another poster suggested and ensure that you can document things for citizenship.

So long as you can prove that you had a same or similar job at the time of the I-485's ajudication you are fine by statute. Document this, keep it in your files for five years from now.

 

[616athem]

That is what exactly I argued with my attorney, who is one of most prominent attorneys and she suggested me to do that. She said that their company has done it for many clients and have gotten thank you letters from that and she does not see any harm in doing that. AC21 memo does recommend sending a notification to INS about the job change. She said that it would be cover me during the citizenship if any question about working for the sponsor employer may come up. I am still wavering but would have to take a decision soon.

616athem

Why? The AC21 statute says nothing about notifying USCIS about changes in employer. To send a letter now only is not necessary and just invites trouble. Do what another poster suggested and ensure that you can document things for citizenship.

So long as you can prove that you had a same or similar job at the time of the I-485's ajudication you are fine by statute. Document this, keep it in your files for five years from now.

 

[616athem]

Thanks Unitednations for your response. Please read the first message for details about closing of the company A. Right now I am working for company B and got an offer from company C before the 140/485 approval. I got my stamping done on the 20th.

I changed to company B after 180 days of 485 receipt date but before 140 approval and an AC21 notice was not sent. This time my attorney wants to send AC21 from the company C.

I hope it is clear now.

 

[616athem]

Your lawyer is probably being ultra-conservative but they get paid to keep you out of trouble, supposedly.

She is charging me $500 as it is not covered under the normal GC Process. She said that they are not making any money on this and it is upto me to choose.

 

[Jim Mills]

When was the I-140 approved?

When did the company shut down?

 

[616athem]

Jim: Thanks for the reply

When was the I-140 approved?

8/3/04

When did the company shut down?

My company laid off everyone on Oct, 2003. However the company got sold on the 30th of July, 2004. I am assuming that for practical purposes the company was shut down on Oct, 2003.

 

[Jim Mills]

Jim: Thanks for the reply

Generally, the corporation closing down prior to the approval of the I-140, AUTOMATICALLY terminates the I-140. Speak to your attorney about this immediately.

 

[616athem]

Generally, the corporation closing down prior to the approval of the I-140, AUTOMATICALLY terminates the I-140. Speak to your attorney about this immediately.

According to my attorney, it is okay since I changed the job after 485 was pending for more than 180 days of pending 485 (AC21 law). My I-140 and 485 were both approved concurrently.

 

[Jim Mills]

According to my attorney, it is okay since I changed the job after 485 was pending for more than 180 days of pending 485 (AC21 law). My I-140 and 485 were both approved concurrently.

I disagree but you should listen to your attorney. Be sure you consult an attorney prior to filing for Naturalization and be certain to discuss this issue. Get opinions in writing on this because I strongly disagree.

Good luck.

 

[tammy2]

Jim, there has been considerable debate on the boards of whether one can use ac21 before 140 approval.

Some lawyers say it is fine because INA doesn't mention that 140 needs to be approved, only that 485 needs to be unadjudicated for more than 180 days. USCIS is on record as saying that it needs to be approved before using ac21.

Here is an attachment that looks like uscis is changing their positiion.

Looks like good news for some more people. It will help many people.

 

[GCMirage]

You Bet!!!

 

[Jim Mills]

The problem isn't that he changed jobs prior to 180 days, that's debatable. The problem is that the company went out of business prior to approval of the I-140. This automatically terminates the I-140 and would mean that the approval was in error. AC21 has nothing to do with this since the I-140 never should have been approved. This is the same situation as a case where the I-140 is denied for lack of ability to pay, the I-485 automatically cancels with the denial of the I-140 and AC21 will not save you from this result (or at least it probably will not). If the I-140 that supports the I-148 fails, the I-485 fails too, AC21 notwithstanding.

 

[lisansw]

confused

I am confused. Does this mean that if one's I-485 has been approved, he/she is still tied up with similar job or need work for sponsor company and etc? No freedom?

 

[tammy2]

The problem isn't that he changed jobs prior to 180 days, that's debatable. The problem is that the company went out of business prior to approval of the I-140. This automatically terminates the I-140 and would mean that the approval was in error. AC21 has nothing to do with this since the I-140 never should have been approved. This is the same situation as a case where the I-140 is denied for lack of ability to pay, the I-485 automatically cancels with the denial of the I-140 and AC21 will not save you from this result (or at least it probably will not). If the I-140 that supports the I-148 fails, the I-485 fails too, AC21 notwithstanding.

If the above memo is new BCIS standing then
Who should answer the I-140 RFE like ability to pay? obviously original employer will not be ready to answer the questions. Will they accept the answer from the AC-21 employer. Even if the original company goes out of business does it matter?

New Mantra might be If you feel that your employer does not have the ability to pay then switch the employer.

Now BCIS has to adjudicate cases within six months. Otherwise they have to approve the cases.

 

[Jim Mills]

Jim, in the very liberal reading of ac21 law and the above memo: If 140 doesn't need to be approved to use ac21 as long as the 485 has been pending for more than 180 days (assuming company doesn't go out of business before then and still had intention of employing said person up until that point) then the portability of the unapproved 140 would also transfer to the ac21 employer.

If ina law was written that 140 needed to be approved before use of ac21 then I agree with you that it would have been issued in error.

This is an interesting development if uscis changes regulations/procedures to conform to ac21 law regarding portability.

That presents serious problems too. At what point does the transfer take place? How can you show ability to pay for the old employer (when it shut down, presumbably because it was not doing well)? If the new employer can go back and show ability to pay for the entire period, what if the new employer is a start-up and did not exist at all when the LC was filed? At the AILA conference in June, the USCIS representatives indicated that if the I-140 was denied or withdrawn by the first employer prior to approval (after approval is different) then the lack of ANY approved I-140 would cause the I-485 to be denied.

 

[616athem]

Thanks unitednations for the update
"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."


Jim: I filed under the EB1(Outstanding researcher category) and there was no LC filed and the company I would be working for is a well established company. My question is that once my attorney sends out an AC21 letter after I start next Monday, could it cause any type of problem? Legally, the sponsor company existed until the strat of this month, just about when my 140 got approved.

Another question is that is it possible to interfile a different I-140 (NIW) with an approved I-485 at this stage. The reason I am asking is, as I have an NIW still pending.

Thanks for the response.

That presents serious problems too. At what point does the transfer take place? How can you show ability to pay for the old employer (when it shut down, presumbably because it was not doing well)? If the new employer can go back and show ability to pay for the entire period, what if the new employer is a start-up and did not exist at all when the LC was filed? At the AILA conference in June, the USCIS representatives indicated that if the I-140 was denied or withdrawn by the first employer prior to approval (after approval is different) then the lack of ANY approved I-140 would cause the I-485 to be denied.