Help Please!!

P

prabhudeva

Registered Users (C)
Friends,

If any one knows the clear answer to this question, PLEASE PLEASE provide your input....

If 180 days have gone by and I-140 is pending, does AC21 protect its revokation????

Cheers...neeed help...
Prabhu :)
 
Probably not. The 180 day clock for AC21 kicks in only after 140 is approved and 485 is pending. Though this is not clearly spelt in the regulations, this is the opinion of many.
 
nkm-oct23,
Can you please ask the following few questions to those "Many"?

1. What was the purpose of passing AC21 law?
2. Where in AC21 law it is written that I-140 approval is needed?
3. Does AC21 August 2003 memo deal with Validity of Approved I-140 or Eligiblity of using AC21?
4.How many cases these "many" have seen got denied due to change of employer before I-140 approval, but after 180 days?

If you get answers for these from those "many", it will be helpful to lot of people.

Thanks,
naanshi.
 
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naanshi,
You are raising your points based on facts that are not written down. You are right in your argument. But the so called "many" raise their points based on conservative and "safety-first" analysis of the immigration rules.
For e.g. What happens to an applicant using AC-21, 180 days after 140/485 application, gets an RFE on 140 ? What happens if the previous employer decides to withdraw the 140 after initially promising to not withdraw the 140?
I would love to have the flexibility of using ac-21, given that my 140 / 485 has been in process at NSC for 210 days. However I am very concerned about the employer playing games if I use ac-21
 
it is better to be safe. We have big time dispues about the written pieces of information, you talk about something that is not written and implied.

Finally, it is your gut feel - if you feel your employer would help you in case there is a RFE, you can use the AC-21 and change your job.
 
naanshi said:
nkm-oct23,
Can you please ask the following few questions to those "Many"?

1. What was the purpose of passing AC21 law?
2. Where in AC21 law it is written that I-140 approval is needed?
3. Does AC21 August 2003 memo deal with Validity of Approved I-140 or Eligiblity of using AC21?
4.How many cases these "many" have seen got denied due to change of employer before I-140 approval, but after 180 days?

If you get answers for these from those "many", it will be helpful to lot of people.

Thanks,
naanshi.
Click to expand...
The purpose of the AC-21 law, as we know it, is to allow 485 petitioners switch jobs after 180 days of filing of th 485 petition and realize their enhanced income potential commensurate with experience and skill.

When this law was created, the concept of concurrent filing of 140 and 485 did not exist. This law basically assumed that an employment based immigrant visa was available based on which the petitioner had filed the 485 to adjust status to that of a permanent resident. Thus, when this law was written it was implied that 140 had to be approved as 485 could not have been filed, otherwise.

Per my recollection, the 08/03 memo deals with the continuation of the validity of an underlying approved I-140, whose beneficiary has a 485 petition pending for greater than 180 days since the time of filing AND has switched employers. To me, therefore, it is obvious that 140 has to be approved and 485 has to be pending for longer than 180 days, to accrue the benefits of AC-21 portability.

Above all, I believe that the USCIS has not published regulations for AC21 even after 3.5 years of the creation of the law for the reason - leave its interpretation open to suit any condition that arises.

There have been great many of us who have been cleared under the current circumstances. These in most instances are people who have filed 485s after their 140 were approved. I do not think there are enough approvals of AC-21 cases (there are some, certainly - I can recall atleast one case from CSC) who had filed concurrently.. and had switched jobs > 180 days from ND while their 140 was still being processed ....

There sure is a lot of thinking on the lines of "better safe than sorry" ....

Thoughts?
 
Thanks folks for all your input, but guess what Sairam has mentioned seems close to whats going on that the interpretation has been left to the circumstances, but what also emerges is that there is no clear answer since concurrent filing has slowed down I140 approvals and they are rarely ever getting done in 180 days, so you are at your own risk of getting instantly out of status if you run into issues later...

Sairam the case that you are mentioning, did he run into any issues or got query on his I140, how did it go for this person..?

My employer is asking me to go back to home country and work there as they cant support my salary here due to slow business, how are they expecting me to wind up my 8 year life in 2 weeks I dont know...what happens to my immigration or will I ever be able to come back who knows, its deep sh**I am just 120 days into filing ...if only there was some clear answer that AC21 protects 140 then something could be done...
I am just thinking of hanging in here and doing some jobs on EAD and then getting locked into a full time job of "similar nature" once 180 days go by and take my chances for 485 approval...any thoughts gurus ???!!!

cheers
prabhu :)



sairam1 said:
The purpose of the AC-21 law, as we know it, is to allow 485 petitioners switch jobs after 180 days of filing of th 485 petition and realize their enhanced income potential commensurate with experience and skill.

When this law was created, the concept of concurrent filing of 140 and 485 did not exist. This law basically assumed that an employment based immigrant visa was available based on which the petitioner had filed the 485 to adjust status to that of a permanent resident. Thus, when this law was written it was implied that 140 had to be approved as 485 could not have been filed, otherwise.

Per my recollection, the 08/03 memo deals with the continuation of the validity of an underlying approved I-140, whose beneficiary has a 485 petition pending for greater than 180 days since the time of filing AND has switched employers. To me, therefore, it is obvious that 140 has to be approved and 485 has to be pending for longer than 180 days, to accrue the benefits of AC-21 portability.

Above all, I believe that the USCIS has not published regulations for AC21 even after 3.5 years of the creation of the law for the reason - leave its interpretation open to suit any condition that arises.

There have been great many of us who have been cleared under the current circumstances. These in most instances are people who have filed 485s after their 140 were approved. I do not think there are enough approvals of AC-21 cases (there are some, certainly - I can recall atleast one case from CSC) who had filed concurrently.. and had switched jobs > 180 days from ND while their 140 was still being processed ....

There sure is a lot of thinking on the lines of "better safe than sorry" ....

Thoughts?
Click to expand...
 
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According to our lawyer " if 180days has passed since I485 has been filed, there is no need for 140 approval . We can use AC21 and change company. HE said few of his clients used Ac21 without 140 approval and got there 140 approved without any problem.
 
registrationid said:
naanshi,
You are raising your points based on facts that are not written down. You are right in your argument. But the so called "many" raise their points based on conservative and "safety-first" analysis of the immigration rules.
For e.g. What happens to an applicant using AC-21, 180 days after 140/485 application, gets an RFE on 140 ? What happens if the previous employer decides to withdraw the 140 after initially promising to not withdraw the 140?
I would love to have the flexibility of using ac-21, given that my 140 / 485 has been in process at NSC for 210 days. However I am very concerned about the employer playing games if I use ac-21
Click to expand...


RFE would be answered by the new employer because we used AC21. Why would the previous employer withdraw 140 when 180days have passed. Do u know anyone whose 140 has been withdrawn because he used AC21 without 140 approval. Our Attorney is very famous. I dont think he would be wrong.
 
kachag,

would you please mind providing some more details like dates or may be the attorneys name, I would like to contact them...this could affect a lot of decisions for me so please do write if you have specific information...
Meanwhile, also see the fourth paragraph from the bottom here

http://www.immihelp.com/gc/aos/change_emp.html

Cheers,
Prabhu :)

kachag said:
RFE would be answered by the new employer because we used AC21. Why would the previous employer withdraw 140 when 180days have passed. Do u know anyone whose 140 has been withdrawn because he used AC21 without 140 approval. Our Attorney is very famous. I dont think he would be wrong.
Click to expand...
 
registrationid said:
naanshi,

For e.g. What happens to an applicant using AC-21, 180 days after 140/485 application, gets an RFE on 140 ? What happens if the previous employer decides to withdraw the 140 after initially promising to not withdraw the 140?

However I am very concerned about the employer playing games if I use ac-21
Click to expand...

That is the reason why they passed this AC21 law. After 180 days nobody should have any control over I-485 applicants. If your employer does not respond to RFE or even if your Employer withdraws I-140 after 180 days, it should not be matter anymore.

Again, I-140 petition is employer based petiton and once you change job, it becomes invalid. But that should not create any problem in I-485 processing.

But always safety is first. If one has choice to wait till I-140 approval then WAIT for approval!!!!!!

naanshi.
 
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kachag said:
According to our lawyer " if 180days has passed since I485 has been filed, there is no need for 140 approval . We can use AC21 and change company. HE said few of his clients used Ac21 without 140 approval and got there 140 approved without any problem.
Click to expand...

Kachag,
I fully agree with your attorney. That is what my attorney and my company law firm say. Did your attorney say that underlying I-140 petition must be approved at some time, even after you changed employer? Or his opinion is that once you changed employer, whatever happens to the underlying I-140 petiton, it does not matter?

naanshi.
 
naanshi,
if after 180 days and w/o 140 approval if the applicant uses AC-21 to change employer and if the previous employer withdraws 140 and as per the new ohata memo if the 140 and 485 are being adjudicated simultaneously, the corresponding 485 will also get cancelled? any thoughts on this scenario? i would love to switch but...
 
WAITING FOR YOUR RESPONSE KACHAG...

Cheers,
Prabhu :)
naanshi said:
Kachag,
I fully agree with your attorney. That is what my attorney and my company law firm say. Did your attorney say that underlying I-140 petition must be approved at some time, even after you changed employer? Or his opinion is that once you changed employer, whatever happens to the underlying I-140 petiton, it does not matter?

naanshi.
Click to expand...
 
registrationid said:
naanshi,
i would love to switch but...
Click to expand...

If you have choice, then better wait for the I-140 approval. Because the AC21 law is so confused, if you ask 50 attorneys, you will get 62 different interpretations. Nobody is sure and I don't know why USCIS cannot clearly say which one is correct.

registrationid said:
naanshi,
if after 180 days and w/o 140 approval if the applicant uses AC-21 to change employer and if the previous employer withdraws 140 and as per the new ohata memo if the 140 and 485 are being adjudicated simultaneously, the corresponding 485 will also get cancelled? any thoughts on this scenario?
Click to expand...

If you look into the law, after 180 days if I-485 is pending, applicant can legally change job without affecting underlying the validity of I-140 petition.

Back to your question, what will happen if the applicant uses AC-21 to change employer and if the previous employer withdraws 140?

1. I don't think NSC follows or will follow any memo for I-140/I-485 processing at same time. We have not seen any thing till now(even after two months as of today)

2. Even if follow then in this scenario, my guess is that they may or may not act in the I-140 petition and but they will act on I-485 petition.

Just my thoughts.

naanshi
 
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