- Home
- Forums
- Immigrant Visas (Green Cards)
- I-485 Issues
- I-485 Issues Common to All Services Centers
- General I-485 and Related Issues
You are using an out of date browser. It may not display this or other websites correctly.
You should upgrade or use an alternative browser.
You should upgrade or use an alternative browser.
Have you heard of an RFE for proof of satisfying the 180 day rule ?
- Thread starter enjoys1
- Start date
Has anyone heard of INS issuing an RFE requesting for proof(paystubs (or) experience letter) that the petitioner worked for 180 days with the sponsoring employer after filing I-485 ?
-----NO, the GC is for future job and AC21 recent Memo has no such requirement
But any idiot can send any kind of RFE and your lawyer has to argue the RFE
-----NO, the GC is for future job and AC21 recent Memo has no such requirement
But any idiot can send any kind of RFE and your lawyer has to argue the RFE
Last edited by a moderator:
weShallOverComeSomeDay
Registered Users (C)
180 days is still an issue.
Link to the posting on the Shusterman's website dates dec 01. Since then there has been very clear Memorandum(s) issued by BCIS stating the 180 day requirement.
Link to the posting on the Shusterman's website dates dec 01. Since then there has been very clear Memorandum(s) issued by BCIS stating the 180 day requirement.
Last edited by a moderator:
waytoolong
Registered Users (C)
Like Ginnu mentioned any idiot can send any RFE - there had been RFEs which asked for EVLs from previous employer stating beginning and end dates. Those seem to be based on a adjudicating officers confusion around the 180 day rule. If the officer opens up a file after 180 days of I-485 RD, then it is pointless to worry about the 180 day rule as long as I-140 remained approved for that period.
Some "officers" (a.k.a. minimum wage half literate unionized jackasses) seem to calculate when the job was actually lost, but a lawyer should point out that it has no bearing on the portability rule or AC21 case.
From the link to Shustermann's website please read:
"Others are confused about whether the rule applies where the applicant changes jobs before the 180-day period has elapsed. Again, the operation of the new rule is not affected by such changes. If an applicant for adjustment of status changes jobs 60 days into the 180-day period, she is home free as long as the INS takes over 180 days to decide the application."
Some "officers" (a.k.a. minimum wage half literate unionized jackasses) seem to calculate when the job was actually lost, but a lawyer should point out that it has no bearing on the portability rule or AC21 case.
Originally posted by vxmehra98
180 days is still an issue.
Link to the posting on the Shusterman's website dates dec 01. Since then there has been very clear Memorandum(s) issued by BCIS stating the 180 day requirement.
From the link to Shustermann's website please read:
"Others are confused about whether the rule applies where the applicant changes jobs before the 180-day period has elapsed. Again, the operation of the new rule is not affected by such changes. If an applicant for adjustment of status changes jobs 60 days into the 180-day period, she is home free as long as the INS takes over 180 days to decide the application."
Last edited by a moderator:
TheRealCanadian
Volunteer Moderator
Originally posted by vxmehra98
Since then there has been very clear Memorandum(s) issued by BCIS stating the 180 day requirement.
Nonsense. Show me one document that states that the alien must be employed by the sponsoring employer for even a single day before or after the I-485 filing.
The Yates Memorandum of August 2003 explicitly says that this is NOT a requirement.
weShallOverComeSomeDay
Registered Users (C)
TheRealCanadian, thanks for the kind words.. There are two parts to the question under consideration.
Q 1. Is it required, that the I-140 application should be approved and I-485 application pending for more than 180 days before the applicant can use AC-21 and switch (join) an employer different than one sponsoring the I-1485 application.
Q 2. Does the employee needs to work for the sponsoring employer (single day or 180 days).
A 1. It is my understanding that unforunately answer to question 1 is Yes
A 2. Also, it has been very clearly stated in the morandum that the employee never needs to work even for a single day with the sponsoring employer.
To support the above chain of thoughts, lets review some informaiton available on immigration websites like http://www.immigration-law.com. I will provide additional information if so required.
01/31/2004: I-140 Portability and New Employer's Obligation
By now, everyone knows that under AC21, the EB-485 applicant may change employer once 180 days pass after filing of EB-485, provided that the new offer of employment is in similar or same occupational classification and the I-140 petition has been approved. Since I-140 is portable after passage of 180 days after filing of I-485 only if there is an offer of similar or same employment by a new employer, such EB-485 has to prove existence of such offer of new employment at some point. This raises two questions to such EB-485 applicants: One is the timing of filing of such proof to the agency, and the other is the nature of the letter which the new employer must provide for the purpose of I-140 portability. Apparently, the answers to these two questions must be drawn from the William Yates Memorandum of August 2003 on continuing validity of I-140 petition under AC 21.
Timing of Filing of the Change of Employer Proof After 180 Days:
If the new employer letter is filed proactively, the USCIS will continue to adjudicate the EB-485 application.
If the new employer letter has not been filed and USCIS receives a letter of withdrawal or request for revocation of I-140 petition by the original employer, USCIS is not supposed to deny the EB-485 application until a prerequisite step is taken. The prerequisite step is serving a Notice of Intent to Deny. If the EB-485 aplicant fails to respond to such notice or fails to prove that he/she had an offer of new employment and it is a similar or same occupational classification, then USCIS is supposed to deny the pending EB-485 application.
If the new employer letter has not been filed and the original employer did not revoke or withdraw the I-140 petition but EB-485 applicant receives a RFE to prove continuing existence of the I-140 petition employment, USCIS may continue adjudication of EB-485 once USCIS receives a proof of new employment offer. USCIS has been exercising discretion to continue adjudication of such EB-485.
What Needs to be Proven by the New Employer:
The USCIS Memorandum states that it is not the actual job one has to prove. It is the "offer" of employment by the new employer. Accordingly, the Memorandum continues to stipulate that the I-140 can be portable and remain valid in certain conext without actual job being taken with the new employer before approval of the pending EB-485 application. It states that legally the statute or regulation does not require the alien to take the I-140 petition employment until the pending I-485 application is approved. Obviously I-140 employment is a "permanent" employment as distinguished from a temporary job and a nonimmigrant is unable to take such job until the permanent resident application is approved. Accordingly, it appears that it is the new employer's "offer" of employment and "intent" to employ the EB-485 applicant upon approval of EB-485. It thus appears that the offer of "temporary" employment may not square with the interpretation of this part of AC 21 by the USCIS. It has to be an offer of employment "for the period of indefinite duration" and the new employer may have to make a commitment to hire the alien for the permanent employment once I-485 is approved. However, it is this reporter's opinion that it may not mandate to stay with one new employer. The I-485 applicant may be able to change from the first new employer to the second employer "inasmuch as he/she can prove" that each of these employers offered not a temporary employment but permanent employment. Even under the AC 21 portability of I-140, it is the opinion of this reporter that the offer of "permanent employement" should continue to exist either through one new employer or subsequent new employers until EB-485 is finally adjudicated. I-140 portability requires "offer of new employment."
11/28/2003: AC 21 Change of Employer and Issue of Pending I-140 in Concurrent Filing
As people know, the USCIS released a memorandum on August 4, 2003 concerning the validity of I-140 under the AC 21 180-day rule. Among others, the memorandum stipulated that under the AC 21, the I-140 would remain valid if the I-485 applicant changes employment after 180 days of filing of I-485, no matter whether the employer withdraws the original I-140 petition.
Caveat: Where the I-140 is still pending in the I-140/I-485 concurrent filing after 180 days of filing of I-485, USCIS opined that the so-called Yates' memo of August 4, 2003 does not apply. This leaves a number of questions wide open in the concurrent filing where I-140 adjudication drags on. Obviously, the first question should be whether the I-485 applicant will be allowed to change employment after 180 days of filing when I-140 is still pending. The other question is whether the I-140 petition would remain valid, should the original employer withdraw the I-140 petition for the purpose of substitution of the employee. Conservative view dictates that the answer could be "negative." The USCIS said that it would release a separate memorandum on this issue. Until such separate memorandum is released, it may be prudent for the I-485 filers to take a extra precaution before they decide to jump to a new employer.
11/28/2003: AC 21 Change of Employer and Narrow Definition of New "Employer"
Under the AC 21, the I-485 applicant is permitted to take a new "employment" of similar or same occupation classification after 180 days of filing of I-485. What is the definition and scope of "employment?" Recently, USCIS HQ opined that "self-employment" is not considered within the parameter of the terms "employment" in the AC 21. This interpretation opens a host of related questions such as what happens if the new employer is a corporation where the I-485 applicant holds controlling shares or 100% of shares?
11/28/2003: AC 21 Change of Employer and Issue of New Employer's Employment Intent Upon Approval of I-485
In the employment-based I-485 proceeding, the I-140 petitioning employer is required to maintain its "intent to employ the petitioned employee" upon approval of I-485. Where the I-485 applicant fails to prove that the employer no longer retains such intent, the immigration services can deny the I-485 application unless it was a self-petition I-140. The theory is that there no longer exists the proffered employment. Additionally, should the I-140 petitioner abandon its intent to employ the sponsored I-485 applicant upon I-485 approval and the immigration services approved I-485 without the knowledge of such change of intent, the immigration services can initiate the legal proceeding of revocation of the approved I-485 for the reasons that had they known such facts, they would not have approved I-485.
What happens if the I-485 applicant changes employment after 180 days of filing of I-485? Obviously, the original I-140 petitioner abandoned such intent in this situation. However, pending I-485 should survive because of the AC 21 180-day rule. Question remains, though, whether the new employer should take over the intent to employ the alien once I-485 is granted. It appears that the USCIS view is that throughout the I-485 proceedings, an employer should retain such intent. Accordingly, it opines that the new employer should retain such intent to employ the I-485 applicant for indefinite duration once I-485 is granted. Implicitly, this view also requires that the alien should retain his/her intent to work for the new employer at the time he/she takes the new employment and throughout the period of employment with the new employer. Should the alien abandon such intent, the USCIS may be able to argue that there was a misrepresentation, and should the USCIS learn such abandonment, it can deny the I-485 and once granted, theoretically, USCIS might be able to revisit the adjudication of I-485 and initiate revocation proceeding.
The USCIS view thus makes one thing clear: Under the AC 21 180-day rule, the I-485 applicant should not take a "temporary" employment. The terms of employment should be for a period of "indefinite" duration. Should the USCIS establish that either the new employer or the I-485 applicant did not retain an intent to employ or work for the new employer "upon approval of I-485," the consequences can be deadly.
It is unclear at this point whether such view and interpretation of AC 21 180-day rule of USCIS is sustainable when it is challenged in the court considering the legislative intent of the 180-day rule, but until it is settled in the court, I-485 applicants should be aware of the USCIS views on this issue and potential risk of ignoring this view.
Q 1. Is it required, that the I-140 application should be approved and I-485 application pending for more than 180 days before the applicant can use AC-21 and switch (join) an employer different than one sponsoring the I-1485 application.
Q 2. Does the employee needs to work for the sponsoring employer (single day or 180 days).
A 1. It is my understanding that unforunately answer to question 1 is Yes
A 2. Also, it has been very clearly stated in the morandum that the employee never needs to work even for a single day with the sponsoring employer.
To support the above chain of thoughts, lets review some informaiton available on immigration websites like http://www.immigration-law.com. I will provide additional information if so required.
01/31/2004: I-140 Portability and New Employer's Obligation
By now, everyone knows that under AC21, the EB-485 applicant may change employer once 180 days pass after filing of EB-485, provided that the new offer of employment is in similar or same occupational classification and the I-140 petition has been approved. Since I-140 is portable after passage of 180 days after filing of I-485 only if there is an offer of similar or same employment by a new employer, such EB-485 has to prove existence of such offer of new employment at some point. This raises two questions to such EB-485 applicants: One is the timing of filing of such proof to the agency, and the other is the nature of the letter which the new employer must provide for the purpose of I-140 portability. Apparently, the answers to these two questions must be drawn from the William Yates Memorandum of August 2003 on continuing validity of I-140 petition under AC 21.
Timing of Filing of the Change of Employer Proof After 180 Days:
If the new employer letter is filed proactively, the USCIS will continue to adjudicate the EB-485 application.
If the new employer letter has not been filed and USCIS receives a letter of withdrawal or request for revocation of I-140 petition by the original employer, USCIS is not supposed to deny the EB-485 application until a prerequisite step is taken. The prerequisite step is serving a Notice of Intent to Deny. If the EB-485 aplicant fails to respond to such notice or fails to prove that he/she had an offer of new employment and it is a similar or same occupational classification, then USCIS is supposed to deny the pending EB-485 application.
If the new employer letter has not been filed and the original employer did not revoke or withdraw the I-140 petition but EB-485 applicant receives a RFE to prove continuing existence of the I-140 petition employment, USCIS may continue adjudication of EB-485 once USCIS receives a proof of new employment offer. USCIS has been exercising discretion to continue adjudication of such EB-485.
What Needs to be Proven by the New Employer:
The USCIS Memorandum states that it is not the actual job one has to prove. It is the "offer" of employment by the new employer. Accordingly, the Memorandum continues to stipulate that the I-140 can be portable and remain valid in certain conext without actual job being taken with the new employer before approval of the pending EB-485 application. It states that legally the statute or regulation does not require the alien to take the I-140 petition employment until the pending I-485 application is approved. Obviously I-140 employment is a "permanent" employment as distinguished from a temporary job and a nonimmigrant is unable to take such job until the permanent resident application is approved. Accordingly, it appears that it is the new employer's "offer" of employment and "intent" to employ the EB-485 applicant upon approval of EB-485. It thus appears that the offer of "temporary" employment may not square with the interpretation of this part of AC 21 by the USCIS. It has to be an offer of employment "for the period of indefinite duration" and the new employer may have to make a commitment to hire the alien for the permanent employment once I-485 is approved. However, it is this reporter's opinion that it may not mandate to stay with one new employer. The I-485 applicant may be able to change from the first new employer to the second employer "inasmuch as he/she can prove" that each of these employers offered not a temporary employment but permanent employment. Even under the AC 21 portability of I-140, it is the opinion of this reporter that the offer of "permanent employement" should continue to exist either through one new employer or subsequent new employers until EB-485 is finally adjudicated. I-140 portability requires "offer of new employment."
11/28/2003: AC 21 Change of Employer and Issue of Pending I-140 in Concurrent Filing
As people know, the USCIS released a memorandum on August 4, 2003 concerning the validity of I-140 under the AC 21 180-day rule. Among others, the memorandum stipulated that under the AC 21, the I-140 would remain valid if the I-485 applicant changes employment after 180 days of filing of I-485, no matter whether the employer withdraws the original I-140 petition.
Caveat: Where the I-140 is still pending in the I-140/I-485 concurrent filing after 180 days of filing of I-485, USCIS opined that the so-called Yates' memo of August 4, 2003 does not apply. This leaves a number of questions wide open in the concurrent filing where I-140 adjudication drags on. Obviously, the first question should be whether the I-485 applicant will be allowed to change employment after 180 days of filing when I-140 is still pending. The other question is whether the I-140 petition would remain valid, should the original employer withdraw the I-140 petition for the purpose of substitution of the employee. Conservative view dictates that the answer could be "negative." The USCIS said that it would release a separate memorandum on this issue. Until such separate memorandum is released, it may be prudent for the I-485 filers to take a extra precaution before they decide to jump to a new employer.
11/28/2003: AC 21 Change of Employer and Narrow Definition of New "Employer"
Under the AC 21, the I-485 applicant is permitted to take a new "employment" of similar or same occupation classification after 180 days of filing of I-485. What is the definition and scope of "employment?" Recently, USCIS HQ opined that "self-employment" is not considered within the parameter of the terms "employment" in the AC 21. This interpretation opens a host of related questions such as what happens if the new employer is a corporation where the I-485 applicant holds controlling shares or 100% of shares?
11/28/2003: AC 21 Change of Employer and Issue of New Employer's Employment Intent Upon Approval of I-485
In the employment-based I-485 proceeding, the I-140 petitioning employer is required to maintain its "intent to employ the petitioned employee" upon approval of I-485. Where the I-485 applicant fails to prove that the employer no longer retains such intent, the immigration services can deny the I-485 application unless it was a self-petition I-140. The theory is that there no longer exists the proffered employment. Additionally, should the I-140 petitioner abandon its intent to employ the sponsored I-485 applicant upon I-485 approval and the immigration services approved I-485 without the knowledge of such change of intent, the immigration services can initiate the legal proceeding of revocation of the approved I-485 for the reasons that had they known such facts, they would not have approved I-485.
What happens if the I-485 applicant changes employment after 180 days of filing of I-485? Obviously, the original I-140 petitioner abandoned such intent in this situation. However, pending I-485 should survive because of the AC 21 180-day rule. Question remains, though, whether the new employer should take over the intent to employ the alien once I-485 is granted. It appears that the USCIS view is that throughout the I-485 proceedings, an employer should retain such intent. Accordingly, it opines that the new employer should retain such intent to employ the I-485 applicant for indefinite duration once I-485 is granted. Implicitly, this view also requires that the alien should retain his/her intent to work for the new employer at the time he/she takes the new employment and throughout the period of employment with the new employer. Should the alien abandon such intent, the USCIS may be able to argue that there was a misrepresentation, and should the USCIS learn such abandonment, it can deny the I-485 and once granted, theoretically, USCIS might be able to revisit the adjudication of I-485 and initiate revocation proceeding.
The USCIS view thus makes one thing clear: Under the AC 21 180-day rule, the I-485 applicant should not take a "temporary" employment. The terms of employment should be for a period of "indefinite" duration. Should the USCIS establish that either the new employer or the I-485 applicant did not retain an intent to employ or work for the new employer "upon approval of I-485," the consequences can be deadly.
It is unclear at this point whether such view and interpretation of AC 21 180-day rule of USCIS is sustainable when it is challenged in the court considering the legislative intent of the 180-day rule, but until it is settled in the court, I-485 applicants should be aware of the USCIS views on this issue and potential risk of ignoring this view.
Last edited by a moderator:
TheRealCanadian
Volunteer Moderator
Originally posted by vxmehra98
A 1. It is my understanding that unforunately answer to question 1 is Yes
My original response was describing any requirement to work for the petitioner during the 180 day period after the I-485 was filed. It seems we are in agreement there.
However, the answer to Q1 is "it depends". So long as a valid future employment offer exists during the first 180 days, the beneficiary can accept temporary employment with another firm even before the I-140 is approved. However, there should a) be a valid intent to work for the sponsor at the time of the I-140 approval and I-485 approval, and b) the sponsor needs to have intent to hire the alien.
Clearly, before the I-140 is approved the sponsor could withdraw the I-140 and no AC21, but if both the alien and the sponsoring employer are in agreement there is room for flexibility.
My opinion (strengthned by the long above post) is:
1. The employee must work for sponsoring employer or must at least have intent to work for him. This is different if the employee is laid off or fired-> the employee had the intent but the employer fired him.
2. The 180 rule for using AC21- can be interpreted in different ways. If you change employer especially if you were laid off- that would be fine.
HTH
1. The employee must work for sponsoring employer or must at least have intent to work for him. This is different if the employee is laid off or fired-> the employee had the intent but the employer fired him.
2. The 180 rule for using AC21- can be interpreted in different ways. If you change employer especially if you were laid off- that would be fine.
HTH
thunder1900
Registered Users (C)
Read the thread on top - an example of approval, you'll know what it is.