Ginnu or gurus..Need your opinion on AC21 spin...

psinha

Registered Users (C)
Ginnu or Gurus,

The AC21 clearly memo states that after 180 days of 1485 filing and I140 approved, the employer cannot seek revocation of I140.

Loop holes .........

Question 1: Vindictive Employers;
what happens, if some vindictive employers may put language in their withdrawal letters indicating the job offer had ceased prior to the I-485 pending for180 days, when that may not actually have been the case???


Question II: Salary, a factor to decide Same or Similar jobs;
Is salary taken into account to decide whether the new position is same or similar to the old???
I do not see any metion of salary requirements in the memo. (Gone through the meom 7 times :) )
 
The AC21 clearly memo states that after 180 days of 1485 filing and I140 approved, the employer cannot seek revocation of I140.
--- Correct
Loop holes .........

Question 1: Vindictive Employers;
what happens, if some vindictive employers may put language in their withdrawal letters indicating the job offer had ceased prior to the I-485 pending for180 days, when that may not actually have been the case???
---- If I-140 is approved and I-485 is pending more than 180 days employer can not revoke I-140 if you get similar job.

Question II: Salary, a factor to decide Same or Similar jobs;
---- According to august BCIS MEMO it does not say anything about salary, but job should be same/similar and June AC21 memo is still effective that says that if the job is not same/similar then Before denying the I-485 the officer should consult with BCIS H.Q.
Is salary taken into account to decide whether the new position is same or similar to the old???
---no, Skills are most important
I do not see any metion of salary requirements in the memo.
 
Even though the AC21 clearly memo states that after 180 days of 1485 filing and I140 approved, the employer cannot seek revocation of I140, there has been cases where the BCIS erroneously revoked I-140 and cancelled the GC process.

One has to bear in mind we are dealing with the most incompetent organization of the free world

The Aug 11 2003 memo "encourages" AC21 applicants to inform BCIS about change in employment and eligibility under AC21. This has it's pros and cons.
pros: 1) With good documentation, a future RFE for EVL may be unncesary and that helps in speeding up the process a bit
2) Vindictive employers will not be able to revoke I-140 before the 180 days is over. It is better to send the AC21 EVLs before the ex-employer can revoke.
cons: If one is not confident about the new position being "same/similar" to the LC then one may have shot self in the foot
 
Ginnu and waytoolong...

Here is my situation:

1)Company A sponsored me for Architect IV position and the Salary stated was $95,018.
2)I485 and I140 filed together in Nov 2002.
3)I140 appoved in February and ofcourse 485 pending .
4)Got offer from Company B for Lead Architect.
5)Job descriptions for both the positions are similar, except one. One of the many duties stated by Company A in the job description was I will be performing Telcom duties. Company B does not want to state that. The rest are same.
6)Company B is offering me $90,000. Also, Company B do not want to state that I will receive $95,108 upon my GC approval. They also do not want to state any bonus figure.
7)I won't be able to retain Company A lawyer. I will have to hire a new lawyer.
8)I have a copy of I140 approval, copy of labor cert approval, copy of EADs approvals, copy of labor filings, I140 and I485 filings.

The Big Question:

Is it risky for me to change the job???

U guys know of any good lawyer that I may hire???

Thanks


------------------------------------------------------
I appreciate all your work at immigration.com
 
Here is my situation:

1)Company A sponsored me for Architect IV position and the Salary stated was $95,018.
2)I485 and I140 filed together in Nov 2002.
3)I140 appoved in February and ofcourse 485 pending .
---- Qualified for AC21 if fulfill other criteria
4)Got offer from Company B for Lead Architect.
5)Job descriptions for both the positions are similar, except one. One of the many duties stated by Company A in the job description was I will be performing Telcom duties. Company B does not want to state that. The rest are same.
----- That is gray area, should contact good lawyer
6)Company B is offering me $90,000. Also, Company B do not want to state that I will receive $95,108 upon my GC approval. They also do not want to state any bonus figure.
----- BCIS August MEMO does not say anything for Salary and remember still final AC21 regulations are not published
7)I won't be able to retain Company A lawyer. I will have to hire a new lawyer.
---- You can hire good lawyer like Sheela Murthy or Rajiv Khanna
8)I have a copy of I140 approval, copy of labor cert approval, copy of EADs approvals, copy of labor filings, I140 and I485 filings.
--- that is good
The Big Question:

Is it risky for me to change the job???

U guys know of any good lawyer that I may hire???
---- I will contact Sheela Murthy
 
Re: Ginnu and waytoolong...

As per many earlier posts:
*GC is for future Job:I140 is related to an employer.
If any change of employement occur,still when GC is apporved
based on this I-140.
And it assumed that the candidate is expected to serve the employer of that I-140. after getting GC.
#Q1 (Here the question may be whether original employer still offers/or able to offer the employement as per 140 terms,
and if this is not the case or co. is defunct, not aware what happens.)
*AC21 can be used when conditions are met. like I140 approval and 180 days of I48 filed.
#Q2 Here I 485 is adjustment of status:Here the 'status' means
'Similar job status' only or also 'Simialr job and slalary status ' or 'Similar Job,salary and presence in a 'Status' in US' aslo.Here the definition of 'status ' 'adjustment' terms does affect.
If some body could please give a reference,if available in official sites can make things clear, otherwise interpretetion by CIS will simply rule(and which is vielded).

#Q3 Also,I have known instances where GC is filed for Job 'A'
for applicants who are working in job 'B'(related but not exactly similar-same and is of lower salary than LC).
These cases out come is still in 'waiting' for adjudication .
Here the candidates have both the qalifiactions and experience
for perfoming both Job 'A' and 'B' also.
The expalnations broughtout were ,GC is for future job and the candidate will be awareded the job and salary at after 'I485' adjudication.(an officail letter accompanied with I140).
This seems to be gray area and any body who is successful in this back ground may please post thier experience and approvals--Which will shed much light on AC21/Similar Job/Salary/Future job relation ship.
#Q4.AC21 may also come in to picture when an employer is out of business(Ex.After their 140 is approved and employee has more than 180 days of 485 filing).Then 485 is further processed or abondoned by CIS.If there is a provision for continuing of 485 adujudication and after approval of GC,still the employee is expected to work for the old co?If that is so,what is the intention AC140.?If there is not a mandate to work for employer who filed
GC,and can work for any employer with immedate approval of GC,
then 'salary' question will not come in to scene as new employer may not offer the same (but of course job to be same)and bound, for example.
If the second is true,then in genaral case at AC21 stage in genral,the salary must not be a serious question even if it is slightly less?
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Any thoughts/expereinces/postings on these some of the critical questions on AC21(postings which are going on cycles at many postings)will shed morelght on this suspense area and will be very much helpful..
 
Re: Re: Ginnu and waytoolong...

Originally posted by Participant

#Q1 (Here the question may be whether original employer still offers/or able to offer the employement as per 140 terms,
and if this is not the case or co. is defunct, not aware what happens.)
*AC21 can be used when conditions are met. like I140 approval and 180 days of I48 filed.
N/A - AC21 is a "portability" provision, if you satisfy the conditions above, the original LC and I-140 are considered portable to the new employer. Your question is applicable for employment with the sponsoring employer

Originally posted by Participant
#Q2 Here I 485 is adjustment of status:Here the 'status' means
'Similar job status' only or also 'Simialr job and slalary status ' or 'Similar Job,salary and presence in a 'Status' in US' aslo.Here the definition of 'status ' 'adjustment' terms does affect.
If some body could please give a reference,if available in official sites can make things clear, otherwise interpretetion by CIS will simply rule(and which is vielded).

AOS = from non-immigrant to immigrant status, just ask your lawyer.

Originally posted by Participant
#Q3 Also,I have known instances where GC is filed for Job 'A'
for applicants who are working in job 'B'(related but not exactly similar-same and is of lower salary than LC).
These cases out come is still in 'waiting' for adjudication .
Here the candidates have both the qalifiactions and experience
for perfoming both Job 'A' and 'B' also.
The expalnations broughtout were ,GC is for future job and the candidate will be awareded the job and salary at after 'I485' adjudication.(an officail letter accompanied with I140).
This seems to be gray area and any body who is successful in this back ground may please post thier experience and approvals--Which will shed much light on AC21/Similar Job/Salary/Future job relation ship.
That example for "sponsorship for future job" has nothing to do with AC21. AC21 is applicable for situations where the applicant was working, but currently is not working and will probably not work for the sponsor upon GC approval, i.e. the LC and I-140 are "portable".

Originally posted by Participant
#Q4.AC21 may also come in to picture when an employer is out of business(Ex.After their 140 is approved and employee has more than 180 days of 485 filing).Then 485 is further processed or abondoned by CIS.If there is a provision for continuing of 485 adujudication and after approval of GC,still the employee is expected to work for the old co?If that is so,what is the intention AC140.?If there is not a mandate to work for employer who filed
GC,and can work for any employer with immedate approval of GC,
then 'salary' question will not come in to scene as new employer may not offer the same (but of course job to be same)and bound, for example.
If the second is true,then in genaral case at AC21 stage in genral,the salary must not be a serious question even if it is slightly less?
Once AC21 is used, the LC and I-140 are portable and the original sponsoring company is welcome to go bankrupt (or to hell for that matter) without any effect on the applicant.
The salary issue is different and unclear, generally for approval under AC21, there are 2 conditions that need to be satisfied
1. The applicant should not become a public charge, i.e. applicant should be currently employed with salary > poverty levels
2. the current (assumed to be GC job) should pay prevailing wages (within +/- std deviation in the state of current employment.
My stand is that as long as the applicant earns within the whole range of salaries for the job in the state in question, it should be okay
 
Thanks waytoolong.

This explanation makes the portability and the benefit plausible
and makes a practical sense(Theoretically for the present),if CIS really follows the spirit behind their AC21.This also really helps to many people in a todays changed job situation.
These issues are raised since to evolve consolidated ideas at one place,as ealier many questions were raised by members and rathter very much scattered.Your expalnation will be certainly helpful.
As evident from the replies,the spirit of letters in AC21,is to ease out the predicament in Changed scenario of employer changes /salary changes(Of course no job desription change and within +/- limits) etc,after certain conditions are met.
If this is the essence/spirit of of AC21(Enacted liberally?),then from CIS we can expect any small salary differences than LC(Seems CIS asking pay stubs in normal approvals also)shall be viewded leniently with AC21 or even with out AC21 situation also(can we expect that CIS can haveOkeey..type of . ..alright attitude diffrent to pre -AC21 enactment?) .
If this is case, it will clear some questions put by members at various threads
 
Things should improve for AC21 folks

There definitely was a period after 9-11 till about 2 months ago when BCIS waa rocked by various scandals and had a very shortsighted "zero tolerance policy" in force. Within the purview of that policy a large (>10%?) salary differential from the LC could be a potential problem even though the original language of the AC21 law calls for a "good faith" interpretation i.e. economy, experience, career growth, etc.

We just have to wait and see what happens now. My salary is 40% more than my LC (largely because I used to work for a corporate slave trader). FP2 tomorrow. Finger crossed. Will let everyone know what happens after that - Good or bad.
 
Waytoolong

As you mentioned your salary >40% LC salary.
Guess , may not invite their attention negatively as more salary:

1) it is ample evidence still Employer can pay the proffered wage
on ported I140/LC.
2)More salary may always a co. can pay to an employee (Like salary rise after co. financially faring better and may be at co. option) during the GC processing.
(For example this may also can happen immedate after GC and if it happens is it a question why co. is paying higher and can it be said that it violated the underlying documenattion like I140&LC.
May not be the case )
So probability may be very less.
3)Last resort is GC is for futute job!

So hope for the better and good luck.

But the real issue may be when salary is less.<10%.
This may cause to ask how the co. can pay the proferred wages in line with underlying Ported I140&LC and obviously violated?.
(Here the question of CO. option to pay less may not hold as the co. was not able to demonstrate Prima facie conditions)
Here GC is for future job may be point if applicable,but it may be hard to convince the handling nut before the sucessful outcome .
Who has epereinced this situation and Approved
case may clarify this issue.Any body in this scenario
may pplease post the detiails,which will giive peace to lots of AC21 people. with salary variations. as this has become a common feature now with changed envioronment.
The above are just ideas of a lay man and real interpretetions /
definitions may come out when some approvals are posted.
 
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