If what you interpret is true, then why does USCIS ask for tax documents and other financials from the new employer? Employment based GCs are for a future job and AC-21 doesn't change that. If it does, then USCIS can let the employee go scot-free once the employee is eligible for AC-21 without forcing a restriction? What's the use of the restriction, then??ar888 said:
how risky is job change after 3-4 months?
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ar888 said:
With a gray area,it is not wise to draw 'definitive' conclusions or 'interpretetions', because none of us has written that law.
we need Follow the law only word to word(as available) with out interpreting things 'in between the lines'as we are neither the court nor the lawyers.Just my 'laymans 'view.Period.
The employee is not let "scot free" after using AC21. he still has to have a "similar" job. That doesnt mean that the new employer automatically becomes the "sponsoring employer".
If the employee shifted to another company "B" after he shifted to company "A" using AC21, say right after getting his GC, he has not lost "good faith intent" as long as he moves to a similar job.
Let us not lose perspective here. GC approval is not like a "StarGate" which has two different meanings before and after. The concept of "good faith intent" was so that people dont misuse the GC process. If iam going to use AC21 to shift to company 'A', i have already legally displayed my intent not to work for the sponsoring employer by shifting jobs.
By shifting to another company 'B' iam not committing fraud because the company 'A' did not bear the costs of my GC. And i legally "converyed to the USCIS" my change of jobs.
This is why "convey to USCIS the intent" is important. You can have a HUNDRED different intents. Its only when there is a discrepancy between what was conveyed to USCIS and what you did there is a problem.
The new "job" in the case of an AC21 is not of a sponsoring employer, it is a "similar" job merely for the adjustment applicant to shift to maintain American Competitiveness.
Let me admit that iam not 100% sure about this - for all I know JoeF might be right. Anyways this is my opinion.
If the employee shifted to another company "B" after he shifted to company "A" using AC21, say right after getting his GC, he has not lost "good faith intent" as long as he moves to a similar job.
Let us not lose perspective here. GC approval is not like a "StarGate" which has two different meanings before and after. The concept of "good faith intent" was so that people dont misuse the GC process. If iam going to use AC21 to shift to company 'A', i have already legally displayed my intent not to work for the sponsoring employer by shifting jobs.
By shifting to another company 'B' iam not committing fraud because the company 'A' did not bear the costs of my GC. And i legally "converyed to the USCIS" my change of jobs.
This is why "convey to USCIS the intent" is important. You can have a HUNDRED different intents. Its only when there is a discrepancy between what was conveyed to USCIS and what you did there is a problem.
The new "job" in the case of an AC21 is not of a sponsoring employer, it is a "similar" job merely for the adjustment applicant to shift to maintain American Competitiveness.
Let me admit that iam not 100% sure about this - for all I know JoeF might be right. Anyways this is my opinion.
I agree completely that even with AC-21, the law requires a sponsor. Or else, they can cut the sponsor off and the employee loose, right?JoeF said:
Hmmm, I don't know why the members are divided on this topic even when it looks obvious. Well, *intelligent* minds think in *intelligent* ways
Also, USCIS is famous for making us really work hard to understand/interpret/follow the law and that's the *lively* part.
TheRealCanadian
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JoeF said:
Joe, please take a moment to re-read my question. For your benefit, I will repost it below:
If the concept of a sponsor does not change, then answer this: the I-140 petitioner (the "original sponsor") can withdraw sponsorship without terminating employment simply by withdrawing or revoking the I-140. Can an AC21 "sponsor" do this? If not, it's not really a sponsor, is it?
Please note the section in italics - the section that you ignored with your quoted response. Given this, I have some doubts as to you ability to properly read relevant statute. However, that's not relevant. Please, answer my question.
Under law, the "sponsor" is clearly defined. It's the individual or corporation that files the immigrant visa petition. Under AC21, what does the "new sponsor" assume? The Labor Cert? the I-140? What are they sponsoring?
Wrong. Here's what you meant to say (italics mine):
Fact is and continues to be that after invoking AC21 an EB2/EB3 applicant needs a same or similar job. Without same or similar job, no GC.
Note use of "job", not "sponsor".
TheRealCanadian
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mrz said:
Because they want some evidence that the wage will be paid, and people go along with it. Based on the new requirements for "ability to pay" at the I-140 stage, if the beneficiary is already making the LC wage then that should be sufficient. Even if the beneficiary wasn't making the LC wage, recent BIA rulings seem to indicate that this is not fatal either under "same or similar" and if one wanted to fight this one, they'd win.
No one argues that AC21 eliminates the requirement for a job. It does, however, eliminate the requirement for a sponsor. Sponsorship implies that the employer does something in addition to employing the alien beneficiary; AC21 clearly makes no requirement on the new employer in this regard. Even Joe should consider that "obvious".
ar888 said:
From the above law, it is clear that AC21 is all about changing employer during the I485, and not about changing GC sponsor. The word "sponsor" is not used by AC21 law and so let's not add it . Different people have different opinion about the "sponsor" word. Hence the debate. The original law uses the word "sponsoring employer" to identify the employer who is sponsoring your GC. If the AC21 law makers wanted to bind the applicants to the new employer for the remaining part of GC (and afterwards), then they would have stated that the new employer becomes the sponsor. They didn't say it. So let's also not say it.
To make it more clear (IMHO), every GC applicant has only one sponsor, who has to do all the paper work for LC and I140. He can withdraw the sponsorship upto 180 days after the I485 is filed. After that he can't do that. After 180 days, it is the nature of the job that determines a candidates eligibility to be granted GC. It is not tied to any particular employer , unlike the old law which specifically ties the GC with one particular employer.
Obviously it looks like old law was designed considering GC as future employment where as AC21 was designed to give relief to applicants who have long been forced to remain with the same employer for too many years (due to prolonged GC process). So i guess AC21 may not be used by future employment people , but it (AC21) completely liberates applicants from any specific employer.
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Then tell me this, why do they have to have this restriction at all? The employee has to work for any employer at the time of adjudication not after that?TheRealCanadian said:
C'mon, GC is based on future employment. Do you agree?
Intent of working with the *then* employer should also exist. Do you agree?
If you don't agree, then how does a employment based GC work?
TheRealCanadian
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mrz said:
Yes.
Yes. Again, no one questions the requirement that the alien beneficiary be employed in a "same or similar" job at the time of ajudication, or that the alien beneficiary have the intent to work for a proferred "same or similar" job.
What I question is the notion of "sponsorship", that the employer needs to do anything beyond offering the job. Since I've answered your questions, let me ask you one: do you believe the employer has an obligation to do anything beyond employing the alien in order for AC21 to be invoked?
TheRealCanadian
Volunteer Moderator
mrz said:
I don't. My case was approved at interview without anything more than an EVL detailing my title and compensation. I had paystubs and bank statements to provide evidence of this, but they were neither requested nor proferred.
If USCIS requested such information and it was not provided, could they deny the case? Absolutely. I'd be highly skeptical that such a denial could withstand appeal, if the alien could provide other evidence that the same or similar job existed.
mrz said:
It means that INS is making sure that you have a genuine job with the same job description from a genuine company. It does not mean that the new employer has become our sponsor. Please remember that in majority of cases (over 90% as per my vast observance in I485 forum) , INS does not ask for financial statements of the new employer when a person avails AC21. Thousands of people got approved by using AC21(replied to RFE) and just subimitting employment letter from new employer.
As i said, different people have different meanings of the word "sponsor". To you, the above scenario makes the new employer as the sponsor. To me it does not, for the reasons i have mentioned in my earlier post.
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AC-21 employer has no other obligation? Then, tell me why does USCIS have to have that restriction... How do you measure the intent after getting GC if there is no obligation with the AC-21 employer?ar888 said:
Basically, you are saying that you apply in AC-21 and you are free to go on the day your 485 is approved, right? Then, the folks who don't use AC-21 are screwed that they have to stay with the employer proving the intent and all the crap... Doesn't make any sense to me!
Of course! The employer has to support the application by providing all the docs that are requested by USCIS when requested. That's one obligation. Second one would be that they have to classify that the job offered is exactly the same as supported by LC. Don't you think it puts them on defensive if USCIS starts investigating? They can even impose heavy fines on the AC-21 employer if found guilty of fraud, don't you agree? Are these not obligations???TheRealCanadian said:
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Maybe, you are lucky that they didn't ask you. I know they have asked all sorts of docs from the AC-21 employer.TheRealCanadian said:
Well, that's speculative, isn't it? Where does the intent of working with the employer or AC-21 employer come into picture after the GC is approved? Employee is free to go the day after the adjudication?TheRealCanadian said:
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How do you prove the intent if you don't even work for one day after the adjudication?dsatish said:
Man, I am becoming like JoeF responding to each and every post... No offence JoeF but really admire your persistence and wonder how you are able to keep it up for so long and still continuing... I am getting tired of it already...
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mrz said:
One might have been vigorously looking for changing jobs when his I485 is approved. This(intention to change jobs) is permissible in post AC21 era. So the old law "At the time of becoming permanent resident, the applicant should have an intention to work for the sposoring employer" does not carry any more weight . One might as well be thinking about a job change at that time.
Ofcourse, just to be safe, i won't suggest any one to change jobs without working for a single day. I have never advocated that. One should give atleast a month time in the worst case. It all depends on INS interprets this "intent" stuff . I guess that we better take th guidance of 30-60-90 ruling because that case is also about how to measure a person's intent ?
To explain more, as per the old law, a person's GC is tied to a particular employer. So the person is expected to work only for that employer after the GC. That's why they had that "intent " law. With AC21, one can change jobs 180 days after the I485. So the old "intent to work for sponsoring employer" became implicitly redundant. This is my understanding. One can not say that you can change jobs while I485 is pending, but you can't change jobs after that. It defeats the spirit of AC21 which intended to free the applicant from any particualr employer.
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