Has any one used AC21 before I-140 approval?

from page 14 of PUBLIC LAW 106–313—OCT. 17, 2000‘‘
(j) JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR
ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE.—A petition
under subsection (a)(1)(D) for an individual whose application for
adjustment of status pursuant to section 245 has been filed and
remained unadjudicated for 180 days or more shall remain valid
with respect to a new job if the individual changes jobs or employers
if the new job is in the same or a similar occupational classification
as the job for which the petition was filed.’’.

From the above law, IF I-140 & I-485 has been Pending for more than 180 days - we can change employer ....
 
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I fully agree with unitednations and shanmugam1174. Some attorneys say about I-140 approval before changing job, may be logically correct. But if some thing is not clearly written in the law, we can take the advantage.
naanshi.
 
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folks,

good discussion, keep it up!

however, naanshi, unitednations, shanmuggam, etc., all those (including me) who are of the view of changing jobs before I140 approval, do we have a real life example of some one who did and went all the way through to get his/her GC?

we can argue about the ambiguity in the AC21 definition, but if it really comes down to work against us, we need to have a back-up plan.
What do you folks think?
 
1. There is a case in Vermont Service Center where the employer withdrew the I-140 petition while it was pending and used the labor for some one. The original applicant changed the job after 210 days and sent AC21 letter to USCIS. His case is still pending.(Note : in his case, USCIS issued RFE instead of straight denial) I am following it up. Other than that I don't know any cases.(Yes, of course My case is still pending. But Employer did not withdraw the petition)

2. Back up plan??? If what we think( Using AC21 before I-140 approval) is completely wrong then I will have to go back to my country and others (Those who used AC21 before I-140 approval) who has some time left in their 6 years H1B, have to file the Labor again. Nothing else we can do. (one more option is going to court)

naanshi.
 
from page 14 of PUBLIC LAW 106–313—OCT. 17, 2000‘‘ -- says when AOS is pending for more tha 180 days , we can switch to different employer. Well they didn't mention about I-140..

But since my I-140 & I-485 has been Pending for more than 10 months, iam going to take risk and switch . but my employer promises that he won't be withdrawing the petition.
rest is god's wish.
 
shanmugam1174 said:
from page 14 of PUBLIC LAW 106–313—OCT. 17, 2000‘‘ -- says when AOS is pending for more tha 180 days , we can switch to different employer. Well they didn't mention about I-140..

But since my I-140 & I-485 has been Pending for more than 10 months, iam going to take risk and switch . but my employer promises that he won't be withdrawing the petition.
rest is god's wish.
Click to expand...

It is not just taking the risk if any thing happens you will have to redo all the process. That is the reason I always say not to take the risk is because I went through the pain. I-140 was pending and I-485 was just 10 days company laid me off. BCIS was not touching my I-140 company was sending I-140 revocation letters. Some how attorney negotiated with company and convinced them revocation is not necessary. By that time they have all ready sent the revocation letter for some of us.

My I-140 took more then one year. Even though I had 3 years H1 left and new company was fully supporting me I was going through the mental worries. I do not want any one to go through that agony. I know lot of people are suffering and taking the risk. It is inevitable. But if you can avoid it Please avoid it.
 
aws said:
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!
Click to expand...

I have the same question. I am afraid if INS ask for REF before it gives me I140 approval. My attorney says I140 must be approved. :confused:
 
Confused

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...
My I485/I140 have been applied in Sep 03. Though I do not have I140 approval, I have changed the employer( with Old employer's conset only.) I am 100% confident that my old employer will sopport I140 till it gets approved.
I have not informed INS regarding changing my job. My job is of same kind and I am getting pay higher than my old job.
I am worried if I will get RFE on I140 approval, where I will stand? Did I act stupidly by changing the employer?
I would appreciate if you can advise me. :confused:
 
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nkp1010 said:
My I485/I140 have been applied in Sep 03. Though I do not have I140 approval, I have changed the employer( with Old employer's conset only.) I am 100% confident that my old employer will sopport I140 till it gets approved.
I have not informed INS regarding changing my job. My job is of same kind and I am getting pay higher than my old job.
I am worried if I will get RFE on I140 approval, where I will stand? Did I act stupidly by changing the employer?
I would appreciate if you can advise me. :confused:
Click to expand...


First of all, you have already changed the employer. So don't worry much. It is upto you to send AC21 letter now or later. If you get RFE then what is the problem, if your old employer takes care of that.

By the way, what did your old company attorney and new company attorney say about the change of employer, before I-140 approval? Can you please share that with us? Thanks.

For your information, after getting RFE, I changed employer (before I-140 approval) and sent AC21 letter to USCIS. Two weeks back my attorney replied to the RFE. (Online status did not get updated yet)

If you are a stupid then I am a big stupid...


naanshi.
 
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shanmugam1174 said:
from page 14 of PUBLIC LAW 106–313—OCT. 17, 2000‘‘ -- says when AOS is pending for more tha 180 days , we can switch to different employer. Well they didn't mention about I-140..

But since my I-140 & I-485 has been Pending for more than 10 months, iam going to take risk and switch . but my employer promises that he won't be withdrawing the petition.
rest is god's wish.
Click to expand...

All the Best Buddy. Hope the GOD will help all of us.

naanshi
 
Ac21

naanshi said:
First of all, you have already changed the employer. So don't worry much. It is upto you to send AC21 letter now or later. If you get RFE then what is the problem, if your old employer takes care of that.

By the way, what did your old company attorney and new company attorney say about the change of employer, before I-140 approval? Can you please share that with us? Thanks.

For your information, after getting RFE, I changed employer (before I-140 approval) and sent AC21 letter to USCIS. Two weeks back my attorney replied to the RFE. (Online status did not get updated yet)

If you are a stupid then I am a big stupid...


naanshi.
Click to expand...

I have only one attorney and he says I140 approval is must.

By your reply I understood that if I get RFE , then my old employer has to reply not the new employer. Am I right? If yes then...I am not a stupid :)
 
Ac21

Naanshi, What's your service center? I have TSC.
Murthy.com wrote in TSC Update : April 2004,Posted Apr 30, 2004
that
"The TSC verified its position that the beneficiary cannot use AC21 portability until the I-140 has been approved and the I-485 has been pending for 180 days." :mad:
 
Ac-21

That's true , TSC has mentioned they are looking for approved I-140 . But read the last line , " this requirement is not specified in the AC21 law itself" .. .. so there is benefit of Doubt which should favor the affected parties like us.

"http://www.murthy.com/mb_pdf/apr3004.pdf"

Portability Only after I-140 is Approved
The TSC confirmed that they are following the August 2003 Memo regarding AC21 portability. Fora detailed analysis of this Memo, see our August 12, 2003 article, BCIS Memo on I-485Portability after I-140 Revocation <http://www.murthy.com/news/UDportme.html>, available onMurthyDotCom. The TSC verified its position that the beneficiary cannot use AC21 portability
until the I-140 has been approved and the I-485 has been pending for 180 days. It also statedthat the beneficiary must inform the service center of the change of job when s/he usesportability. We note that, while this is implied in various USCIS or Legacy INS Memos and is whatwe routinely recommend, this requirement is not specified in the AC21 law itself.
 
Contacted another attorney

shanmugam1174 said:
That's true , TSC has mentioned they are looking for approved I-140 . But read the last line , " this requirement is not specified in the AC21 law itself" .. .. so there is benefit of Doubt which should favor the affected parties like us.

"http://www.murthy.com/mb_pdf/apr3004.pdf"

Portability Only after I-140 is Approved
The TSC confirmed that they are following the August 2003 Memo regarding AC21 portability. Fora detailed analysis of this Memo, see our August 12, 2003 article, BCIS Memo on I-485Portability after I-140 Revocation <http://www.murthy.com/news/UDportme.html>, available onMurthyDotCom. The TSC verified its position that the beneficiary cannot use AC21 portability
until the I-140 has been approved and the I-485 has been pending for 180 days. It also statedthat the beneficiary must inform the service center of the change of job when s/he usesportability. We note that, while this is implied in various USCIS or Legacy INS Memos and is whatwe routinely recommend, this requirement is not specified in the AC21 law itself.
Click to expand...

Last evening I had meeting with another attorney and he told me I can not use AC21 if I140 is not approved.
I have two attorney opinion "I140 approval is must to use AC21". I am going to switch back to my old employer.
 
Safe approach is I-140 approved , But no where it's mentioned as law.Anyhow i have taken an appointment(AUG 12) with Los angeles INS to talk with Immigration officer about this AC-21 . I will update about the outcome .

Nanshi -- Since you have wide knowledge about AC-21 , Can you pls call customer service and ask them to i need to talk Immigration officer(IO), they will transfer to IO . I will try today.. it take more than 15 min... If any guys are free, pls try to get a opinion
 
shanmugam (i have sent a private message to you),

what exactly are you trying to get from the IO officer? I am curious to know as well.
what is your status: I140 approved or not?
 
nkp1010 said:
Last evening I had meeting with another attorney and he told me I can not use AC21 if I140 is not approved.
I have two attorney opinion "I140 approval is must to use AC21". I am going to switch back to my old employer.
Click to expand...

There is no need to join back the employer as long as he supports you. You can change job any time. This is about informing BCIS about change of your intent before the approval I-140. If you are not informing and your I-140 gets approved you are fine.
 
Friends,
What I was thinking about AC21 law is completely wrong. Nebraska Service Center has confirmed that I-140 must be approved to use AC21. it is 100% true. Do NOT use AC 21 without I-140 approval. It is not clear, what is going to happen to my case.

Majority is always correct!!!!!

naanshi.
 
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