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Has any one used AC21 before I-140 approval?
- Thread starter aws
- Start date
ginnu,
i agree with what you say, however, as you know, AC21 states the validity of approved I140 when jobs are changed and NOT that I140 approval is required to change jobs.
in cases, where applicants are assured support by their sponsoring employers on not withdrawing I140 if the beneficiary moves to a new job, what do you think, can they take the new job?
i agree with what you say, however, as you know, AC21 states the validity of approved I140 when jobs are changed and NOT that I140 approval is required to change jobs.
in cases, where applicants are assured support by their sponsoring employers on not withdrawing I140 if the beneficiary moves to a new job, what do you think, can they take the new job?
TheRealCanadian
Volunteer Moderator
naanshi said:What I was thinking about AC21 law is completely wrong. Nebraska Service Center has confirmed that I-140 must be approved to use AC21. (Please do not ask me how I got this and I cannot give much information). But 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.
While the majority is not always correct, there is a long-established principle in US immigration law that an immigrant may not be admitted without the exisstence of an approved immigrant visa petition (I-130, 140, 360) in some category. You need that to determine which pool the visa number comes from, and to determine if the alien qualifies.
AC21 is entirely silent about the I-140, for good reason - the law does not change immigration law in this way. If Congress wanted to amend the INA to state that immigrants could be admitted to the US without an approved immigrant visa petition, they would have said so explicitly. They did not, and the logical and reasonable inference is that they planned no changes in this area.
For someone to claim that just because the I-485 has been pending for more than 180 days an unapproved I-140 cannot be withdrawn would throw immigration law on its head, which clearly wasn't Congress' intention. At the same time, losing the ability to revoke an approved I-140 after 180 days is a reasonable inference based on the subject of the law.
Bottom line, you need an approved I-140 in order to take advantage of AC21.
The Yates Memo says so explicitly, and I would be very suspicious of anyone (attorney or not) who believes that the current USCIS implementation would not survive a court challenge. William Yates is a sensible man, and the memo provides predictable, reasonable guidance.
aws said:ginnu,
i agree with what you say, however, as you know, AC21 states the validity of approved I140 when jobs are changed and NOT that I140 approval is required to change jobs.
------ you CAN change jobs without I-140 approval, you can join other employer on H1, but to USE AC21 I-140 APPROVED and I-485 pending more than 180 days is needed, if you dont want to use AC21 or dont care about AC21, you can change employer any time
in cases, where applicants are assured support by their sponsoring employers on not withdrawing I140 if the beneficiary moves to a new job, what do you think, can they take the new job?
----- if the past employer does NOT withdraw the I-140 or if RFE for I-140 and replies the RFE and RFE responce is accepted by USCIS and then I-140 is approved AND I-485 is pending more than 180 days AND you find Similar job and your New employer is ready to give you Future permanent job offer letter
mustbepatient
Registered Users (C)
Good explanation, TRC
The Real Canadian,
I think you've provided an excellent explanation of why the 140 must be approved before AC21 can be applied. There seems to be an opinion by some people that if 6 months have passed, then they are entitled to immigrate to the U.S. even if they don't meet the basic criteria required to immigrate. If this were the case, millions of people would file for immigration with non-existing jobs or qualifications knowing that their AOS would never come up for adjudication within 6 months.
Of course, the problem is that one of AC21's intents was to prevent people from being trapped in jobs indefinitely (abusive employers, etc.) just because of processing delays. But this intent has gone out the window with the long delays in 140 processing. Mine took over 14 months to get approved.
I think if the government wants AC21 to have any meaning, they need to find a way to ensure that the 140 gets adjudicated within a 180-day period. If it's approved, then you're eligible for AC21 portability. If it's not approved, then the applicant is not entitled to immigrate, based on the criteria.
The Real Canadian,
I think you've provided an excellent explanation of why the 140 must be approved before AC21 can be applied. There seems to be an opinion by some people that if 6 months have passed, then they are entitled to immigrate to the U.S. even if they don't meet the basic criteria required to immigrate. If this were the case, millions of people would file for immigration with non-existing jobs or qualifications knowing that their AOS would never come up for adjudication within 6 months.
Of course, the problem is that one of AC21's intents was to prevent people from being trapped in jobs indefinitely (abusive employers, etc.) just because of processing delays. But this intent has gone out the window with the long delays in 140 processing. Mine took over 14 months to get approved.
I think if the government wants AC21 to have any meaning, they need to find a way to ensure that the 140 gets adjudicated within a 180-day period. If it's approved, then you're eligible for AC21 portability. If it's not approved, then the applicant is not entitled to immigrate, based on the criteria.
good discussion folks, keep it up!
in a case where a person uses AC21 before I140 approval hoping it to get approved down the line, what can happen if it is denied for some reason?
what is the way out? does the beneficiary becomes out of status immediately? though one might have some tenure left on H1-B, but due to the use of AC21 (EAD is used) and so, H1-B is now in-valid. Can one reinstate H1-B ?
in a case where a person uses AC21 before I140 approval hoping it to get approved down the line, what can happen if it is denied for some reason?
what is the way out? does the beneficiary becomes out of status immediately? though one might have some tenure left on H1-B, but due to the use of AC21 (EAD is used) and so, H1-B is now in-valid. Can one reinstate H1-B ?
aws said:good discussion folks, keep it up!
in a case where a person uses AC21 before I140 approval hoping it to get approved down the line,
what can happen if it is denied for some reason?
------- if I-140 is denied then EAD AP- I-485 all get denied
what is the way out? does the beneficiary becomes out of status immediately?
----- yes if not on other nonimmigrant valid status
though one might have some tenure left on H1-B, but due to the use of AC21 (EAD is used) and so, H1-B is now in-valid.
----- yes, H1 is invalid if EAD used
Can one reinstate H1-B ?
---- go out, get H1 visa stamped and enter on H1
One question. I got my 7th year H1B extension approved from my old company and it is valid upto 2005 March. In May 2004, I had to change the company using EAD. (I did not have any option to save my job and the attorney I am dealing with is the dumbest fellow in the world, who does not know ABC of immigration) If my I-140 gets denied, do I have to leave USA immediately or from the new company I can file H1B for the remaining period ie till March 2005?
Thanks,
naanshi.
Thanks,
naanshi.
Last edited by a moderator:
You can stay till March 2005. Otherwise what is use of it?naanshi said:Ginnu,
One question. I got my 7th year H1B extension approved from my old company and it is valid upto 2005 March. In May 2004, I had to change the company using EAD. (I did not have any option to save my job and the attorney I am dealing with is the dumbest fellow in the world, who does not know ABC of immigration) If my I-140 gets denied, do I have to leave USA immediately or from the new company I can file H1B for the remaining period ie till March 2005?
Thanks,
naanshi.
naanshi said:Ginnu,
One question. I got my 7th year H1B extension approved from my old company and it is valid upto 2005 March. In May 2004, I had to change the company using EAD. (I did not have any option to save my job and the attorney I am dealing with is the dumbest fellow in the world, who does not know ABC of immigration) If my I-140 gets denied, do I have to leave USA immediately or from the new company I can file H1B for the remaining period ie till March 2005?
Thanks,
naanshi.
Naanshi,
As I wrote earlier that I asked an (paid) advice from another attorney , he told me that if I change my employer in absence of I140’s approval then I can not use the AC21 but he showed me other RISKY way. If USCIS asks me then , I have to prove USCIS that there is an opening for me with my old employer (who sponsored the GC) and I have my full intention going back to my old employer and work for him. This is really very difficult. But I look as “It’s possible that you get your case through, even though you have changed the employer w/o using AC21."
I hope USCIS gives good ruling in favor of this kind of cases.
Thanks Tammy,tammy2 said:You can stay till March 2005. Otherwise what is use of it?
So you are telling that even though I am not working with the old employer, who filed my 7th year extension and even after using EAD, I can file to H1B through my new employer and stay here legally till my current H1B expired (March 2005), if my I-140 gets denied. Am I correct?
naanshi.
I did not read your message properly. sorry about it.
If you have used EAD how can you stay on H1B? You should be continues on H1B. Once you used EAD you lost your H1 status. If you are currently on H1B then in case of denial you continue to have that status. No matter who applied for your Labor and I-140.
If You change the employer you may need to give the proof pending Labor/I-140 for more then one year again I guess.
naanshi said:Thanks Tammy,
So you are telling that even though I am not working with the old employer, who filed my 7th year extension and even after using EAD, I can file to H1B through my new employer and stay here legally till my current H1B expired (March 2005), if my I-140 gets denied. Am I correct?
naanshi.
If you have used EAD how can you stay on H1B? You should be continues on H1B. Once you used EAD you lost your H1 status. If you are currently on H1B then in case of denial you continue to have that status. No matter who applied for your Labor and I-140.
If You change the employer you may need to give the proof pending Labor/I-140 for more then one year again I guess.
Naanshi
I asked my lawyer and he told me that once you used your EAD then you are no longer in H-1B status.( You cannot avail the benefits of H1-B). All your previous H1-Bs are deemed invalid. So you cannot be using your H1-B from your old employer even though it has validity till next year. You will have to go out of the country get a new H1-B and come back. There is no way for you to stay in the US as you will be out of status the moment your 140 is denied.
Lets hope your case will go through without any problems.
Good Luck...........
I asked my lawyer and he told me that once you used your EAD then you are no longer in H-1B status.( You cannot avail the benefits of H1-B). All your previous H1-Bs are deemed invalid. So you cannot be using your H1-B from your old employer even though it has validity till next year. You will have to go out of the country get a new H1-B and come back. There is no way for you to stay in the US as you will be out of status the moment your 140 is denied.
Lets hope your case will go through without any problems.
Good Luck...........
I switched to a new job after 180 days of filing i140/i485. (The duration at sponsor company was exactly 181 days after filing receipt date). After a month of working at new company a letter was sent to INS about the change of job. Shortly after that my I140 was approved. Now an RFE is on its way asking for a bunch of evidences/letters as per my lawyer (I haven't seen the RFE yet). I will keep you guys posted on what happens next.
aws said:skosian,
does that mean you changed job BEFORE I140 approval??
Yes.
Yes, my old company did not withdraw the I140.that is indeed an audacious move, something which I am too pursuing.
did your original company assured you their support to I140 or what?
i am eager to hear from you....
When and for how long would you have to go back to the old employer? Any salary requirements?nkp1010 said:If USCIS asks me then , I have to prove USCIS that there is an opening for me with my old employer (who sponsored the GC) and I have my full intention going back to my old employer and work for him.
naanshi said:skosian,
RFE for what? I-140 or I-485? Kindly clarify. What was your attorney's reaction, when you changed the company?
naanshi.
RFE is for I-485, there was no RFE for I-140.
The attorny didn't seem to care much but he said it was better to stay until I140 was approved. If I had a choice I would have stayed.