Has any one used AC21 before I-140 approval?

A

aws

Registered Users (C)
I am planning to use AC21 to move to a similar job, but my I140 EB-2 is pending at NSC since 10/21/2003.
Fortunately, I have availed the support of my current employer to support my
GC even if I quit them before it is approved. I think this should help.

Pl. share your view/experiences, etc.
Thanks!
 
I've seen in some threads where people have done the same. But its crucial that your former employer does not withdraw the I140 till its approved.
 
pv1976,

Thanks for the reply.

Can you direct me to such threads in this forum or anyone whom you know specifically has done something like this?
 
thanks ginnu for the links.

Do you agree with what Naanshi stated earlier in of the earlier threads that once I140 and I485 are pending for well over 180+days, then the sponsoring employer for I140 looses control over it, i.e., it cannot withdraw or revoke I140. Even if it does so, it will not have any effects on the I485 provided we provide proof of new similar employment.

Pl. share your view.
thanks!
 
aws said:
thanks ginnu for the links.

Do you agree with what Naanshi stated earlier in of the earlier threads that once I140 and I485 are pending for well over 180+days, then the sponsoring employer for I140 looses control over it, i.e., it cannot withdraw or revoke I140.
----- No I dont agree, employer can withdraw and revoke 140 before 1-485 does not hit 180 days
Even if it does so, it will not have any effects on the I485 provided we provide proof of new similar employment.

Pl. share your view.
thanks!
Click to expand...
 
"once I140 and I485 are pending for well over 180+days"

aws,
Are we talking here after 180 days or before 180 days of I-485 pending? I thought that we are talking about withdrawing or revoking after 180 days of I-485 pending, not before I-485 does not hit 180 days.


naanshi.
 
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ginnu and naanshi,

folks thanks for the reply.

i apologize if i confused u both in my wording, let me ask your opinion by a simple yes or no response:

1) for concurrent filing, if once your I140&I485 are pending for 180+days (which is true in my GC case), employer cannot withdraw I140?(Y/N)

2) Even if the employer withdraws it while I140 is pending and I485 is also pending for 180+days, then withdrawal of I140 will not have any effect on processing of I485? (Y/N)

3) If I140 is withdrawn (again, I485 is 180+ days), proof of similar employment (AC21) can be used to continue processing I485 (Y/N)?

folks, please provide your answers with clarifications.
thank you very much!
 
aws said:
1) for concurrent filing, if once your I140&I485 are pending for 180+days (which is true in my GC case), employer cannot withdraw I140?(Y/N)
Click to expand...

A petitioner (the employer) can always withdraw a pending I-140, no matter how long the I-485 has been pending for.

2) Even if the employer withdraws it while I140 is pending and I485 is also pending for 180+days, then withdrawal of I140 will not have any effect on processing of I485? (Y/N)
Click to expand...

If the I-140 has not been approved, you are sunk.

3) If I140 is withdrawn (again, I485 is 180+ days), proof of similar employment (AC21) can be used to continue processing I485 (Y/N)
Click to expand...

Provided the underlying I-140 is approved and the I-485 has been pending over 180 days, USCIS will send you a Notice of Intent to Deny in such a case, you provide evidence of a similar job per AC21 and all is peachy.
 
My Answers:

1) No. Employer can withdraw or revoke at any time.

2) Yes. USCIS may issue NOID if the applicant did not send AC21 letter with New employment Offer

3) Yes. As long as you have same or similar job and you are not a burden to the society, you are protected by the Law.

But I don't know whether the underlying I-140 must be approved or not, after you changed the employer.

Just my views. It may not be correct.

naanshi.
 
naanshi said:
My Answers:


2) Yes. USCIS may issue NOID if the applicant did not send AC21 letter with New employment Offer

naanshi.
Click to expand...

I know a case in which I-485 was denied directly after getting this I-140 revocation letter. After negotiating with employer he sent a letter saying that he was not intended to revoke the I-140. But BCIS said that employer needs to reapply for I-140 sighting some technical reason that once withdrawn petition cannot be reinstalled.
 
tammy2 said:
I know a case in which I-485 was denied directly after getting this I-140 revocation letter. After negotiating with employer he sent a letter saying that he was not intended to revoke the I-140. But BCIS said that employer needs to reapply for I-140 sighting some technical reason that once withdrawn petition cannot be reinstalled.
Click to expand...

Tammy,
Did it happen before or after August 2003 AC21 Memo published? I read about some cases, where I-485 was denied due to the revocation of I-140 petition, even after I-485 pending for more than 180 days. But those happened before publishing the August 2003 AC21 Memo.

Naanshi.
 
One of my friends had pending I-140 and I-485 more than 180 days with VSC from employer X
He joined new employer Y
Later past employer A sent letter to USCIS to withdraw the pending I-140, my friend lawyer got letter from USCIS that EAD AP are invalid and his I-485 has been denied and this happened after AC21 2003 Memo. Lawyer said that he couldn’t file motion to reopen, as my friend has no base of I-140 and it has been withdrawn as I-140 was not approved and I-485 was not pending more than 180 days when I-140 got withdrawn.
VSC sent letter May 2004 to deny the I-485
 
Rahee said:
Lawyer said that he couldn’t file motion to reopen, as my friend has no base of I-140 and it has been withdrawn as I-140 was not approved and I-485 was not pending more than 180 days when I-140 got withdrawn.
Click to expand...


Here is the reason for denial...

and I-485 was not pending more than 180 days when I-140 got withdrawn
 
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rahee,

at the begining u mentioned that I485 was pending 180+ days when ur friend joined new company, while the reason CIS gave him was that I140 was withdrawn before I485 hit 180 days
can you clarify what is the real deal with ur friend?

naanshi has rightly pointed out the real reason for denial.

so, does it mean that as long as your current employer supports I140 (even if you leave them), you can change jobs and I485 will continue being processed.

correct me if i am wrong
 
naanshi said:
Here is the reason for denial...

and I-485 was not pending more than 180 days when I-140 got withdrawn
Click to expand...
The lawyer told my friend tha he needed I-140 approved and I-485 pending more than 180 days to use AC21, it does not mean that if I-485 is pending more than 180 days and I-140 is not approved he coild have used AC21.
 
aws said:
rahee,

at the begining u mentioned that I485 was pending 180+ days when ur friend joined new company, while the reason CIS gave him was that I140 was withdrawn before I485 hit 180 days

can you clarify what is the real deal with ur friend?

naanshi has rightly pointed out the real reason for denial.

so, does it mean that as long as your current employer supports I140 (even if you leave them), you can change jobs and I485 will continue being processed.

correct me if i am wrong
Click to expand...
He filed I-140 and I-485 Concurrently and both were pending more than 180 days when employer withdrawan 1-140, if his employer had not withdrawn I-140 and I-140 was approved he could have used AC21 according to lawyer.
 
Rahee,
Thank you very much for the clarification. If this is true, then underlying I-140 must be approved, at least after changing the employer. That is what my attorney told me. (It is legal to change employer after 180 days, before I-140 approval. But the I-140 must be approved at some time later). Your friend's case confirms that.

It is still hard to believe that USCIS denied the case, without issuing NOID.

naanshi.
 
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naanshi said:
Rahee,
Thank you very much for the clarification. If this is true, then underlying I-140 must be approved, at least after changing the employer. That is what my attorney told me. (It is legal to change employer after 180 days, before I-140 approval. But the I-140 must be approved at some time later). Your friend's case confirms that.

It is still hard to believe that USCIS denied the case, without issuing NOID.

naanshi.
Click to expand...
Yes that is what every one saying. Sending the AC-21 letter will not stop the
Denial unless I-140 is approved before that.
 
I don't think sending AC21 will make your case denied. If the underlying I-140 gets denied, then I-485 may be denied. I have send AC21 letter, before I-140 approval and let us see. Till I get my denial letter, I will continue believe what my lawyer and my company lawyer said.

Thanks for all the good discussion Friends..

naanshi
 
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