I485 & New Job Position

K

kclee60

Registered Users (C)
I need some advise from anyone out here URGENTLY. My company attorney filed for my I485/I140 concurrently in May 7, 2003. I am offered a new position and this will require me to relocate to another state. I have asked my company lawyer prior to my taking up this offer and he did not reply (this lawyer is very uncooperative and have not been replying all my emails).

Now that I have accepted my company offer, (I have been with this same company for over 6 years and they are sponsoring my GC application), I sent another email to my company attorney.

Suddenly I received a reply from him and he told me that I cannot accept a new position now. The soonest I can accept this position would be Nov 7, 2003. He further stated taht I should stay put in my current place and position. Doing otherwise, he mentioned he cannot guarantee that I will receive my green card. Should there be an interview on my case, I could be denied the green card because I am no longer in the position that was offered to me under the labor certification. Is it true? Can anyone pls advise me if they are in similar situation? According to my lawyer, he mentioned there is a law requiring that I stay with the sponsoring employer in the offered position for at least 180 days after filing for AOS? I thought the LC is for a position that I will assume once I have my I140/I485 approved?

I am very frustrated by this turn of events and this *&!@ company attorney who only reply me this late and never properly advise me of this requirement.

Now assuming what he said is true, can I still assume this position while I stay put in my current address and doing dual roles while drawing the increased salary? Since I filed for LC, my pay has risen over 20% and now with this new role I will have another 12% rise in my pay.


I know I have written a lot. I really hope to hear some response from some of you guys who has been through the same bind as me. Please help as I am getting very mad at my lawyer. Does that mean that we have to sacrifice a good opportunity just to get our GC?

Thanks in advance.
Ken
 
Here's what I know about the GC though Employment process.

Your current company has an opening to fill. It did the recruitment process but couldn't find any American or permanent resident through LC, and it proved that you are the best suited person.

It's asking BCIS to grant you a green card so the company can hire you for a permanent position (I-140). Once the BCIS approves the petition, and since you are already in the States, you file AOS (I-485) with the BCIS. Once it's approved, you can work for your company on a permanent basis.

Now, if you quit your company for another, then your LC is invalid (assuming the new job description is different from one on the LC). And your current company has the right to withdraw I-140 since you won't be working for them. And since there is no I-140, I-485 will be rejected.

There is a special law called AC21. If your I-140 is approved, your I-485 is pending for 180 days, and a new position you are interested to take from another company is similar (maybe exactly the same, I'm not sure), then you can use AC21 to change companies without a problem. That's what your lawyer is saying.

So, at least you need to stay with your current company until I-140 is approved and 180 days are lapsed in order for you to take this new job.
 
I485 & Job Change

Thanks for the prompt reply.

I am with the same company that sponsored my LC and GC application. When my attorney filed my LC, I am a consultant engineer. But now my company (i have never changed company) is offering me a promotion and a different job title as Account Engineer with a higher salary. My I140/I485, I765 and AP are all filed concurrently and ND are all May 9th 2003.

My question is: Is my attorney correct that I should not accept this new position or even consider relocating to CA; at least not till Nov 9, 2003? Will this jeopardize all the efforts that I have put in and invalidate my AOS application?

Thanks again. I am too disturbed to do anything after I received this memo from my lawyer.

Pls help.
 
klee60,

I get the feeling yours is a grey area. Here are some items though IMO.

If you got an RFE before 180 days elapsed, I am not sure you would be able to invoke AC-21 since I believe that I requires 180 days. However based on what is posted in this forum, very few applicants got an RFE within 180 days. (Note: murthy.com advices readers that it's best to wait until the following happens before switching jobs under AC-21 rules: approval of I-140 AND waiting 180 days from RN of I-485 application).

If 180 days passes, you may be able to invoke AC-21. Unless your lawyer advices otherwise, you would probably do so if and only if BCIS issues an RFE.

Should you accept the position? It's a matter of risk. The company values your obviously because they are promoting you. Will they accommodate a request and agree to ensure that the job description in your new position is similar to the current one? If so, your risk is minimized. If not, the risk is greater since BCIS could state your new job is different from the one your employer petitioned in your LC. Again, you may be in luck if they do not issue an RFE in your case.

Will they issue an RFE for employment? Hard to tell. The likelihood seems almost anecdotal. I got one. Many others didnt. The question is once you move to CA you will need to file AR-11 (Address change). Will increase the chances of an RFE? I simply don't know.

rgds,
sadiq
 
I485 & Job Change

Sadiq,

Thanks for your reply.

It seems pretty clear from your response and reading this forum that it is better to play safe and say put: foregoing any chances of a promotion or career advancement...all this at the expense of waiting for the "coveted" GC? I am not sure if this is appropriate but I find it so ridiculous that we are being imprisoned by this.

Actually the Dallas office offered me to move there but I decided to take up the offer from my main office in CA. I think I would take this risk and ask my management if they can ensure that my job description will remain the same.

This is my strategy. I take up this offer and relocate to CA in September. Since my company will buy my remining lease till Dec 03, I feel I can still have my mail redelivered to my new address in CA. I will only announce my address change after 180 days has passed since my ND. Is this considered cheating? Will BCIS finds out? Will there be a RFE request from BCIS for my I140/I765 and AP later on? My ND for all these is 5/9/03 and if the RFE comes before my actual relocation, I should be OK if I move to CA after that? Tell me if I am wrong or if I am digging my own grave in this long excruciating painful process.

Again, I am now also at the mercy of my lawyer who is only interested in making money through my company without properly advising me on this prior to me accepting my new position.

Thanks again.
 
I read a post in this forum where someone got RFE asking for the end date of the old employment and the start date of the new employment. You may be ok by lying about the dates, but what if the BCIS asks for the pay stubs?
 
Since you are working with the same company, with a diffrent job title, legally it is a problem. But I know people who worked with BIG 5 firms, got promoted to diffrent jobs, but their firms and attorneys still shows the earlier job tile and job description if INS asks questions. This cases do happen if you stay with the same employer for a long period of time. Check with a competent attorney to see there is any way you can accept the new job with out an Labour certification.
 
u should be ok

Your company is same, you are getting promotion ! why you think you,ll get into problem. You are getting promotion because you are a competent worker. You have been give additional responsibilities.

If you get RFE your company can mention that you are doing your previous work and also additional resposibilities with exp and promotion. I think In my opinion its a positive thing, Go for it.Talk to some other attorneys before making a final cut.

Good luck
 
I agree with "reliance" and "moonlight101".

I have been promoted 1 time since company filed my Labor, changed 3 managers, changed Department due to reorg and also more than 20% salary increase compare to Labor filings. Company attorney says, as long as you do the same work and with the same company, I am okay. I am not sure, how relocation will impact. At the time of RFE, company attorney put the same job title stated in Labor, to avoid confusion at BCIS.
 
If you relocate, will the case be transferred to a different processing center? I am in similar situation but going to work in the same company's Texas office. If the case is transffered to TSC, it will be even longer wait...... Please post your response!
 
it is just as important to understand what AC-21 portability is not as it is to understand what it is.

a fundamental tenet of AC-21 is that the new job has to match the job description in the LC that is the basis of one's i140. here's where this gets interesting: if you accept another job in the same organization, how can you demonstrate that it is the same job for which your LC was approved? pay raise is not an issue, but job description is: if you claim you are doing the exact same things for the exact same employer, then it must follow that it is the exact same job, with the exact same description and title, albeit for more money.

it is much easier to switch employers completely and then claim you are doing the exact same things for your new employer as for the old one (AC-21).

how does it apply to geographic change in the job? AC-21 does not put any restrictions on geographic locations, but LC does. so if you are not invoking AC-21, you cannot change geographic locations even within the same company. if you do invoke AC-21 for a job change within the same organization, then you run into the problem described above. a classic catch-22.

what one gleans from all this is that, on the one hand, employment-based GC process is meant to make you stay with your sponsoring employer in the job that was made available to you through LC with all its limitations for a reasonable length of time. on the other hand, under AC-21 law, you can change employers completely if the time leading up to GC approval is inordinately long. since the BCIS, in its infinite wisdom, has not seen it fit to come out with its own stated interpretations of AC-21 in the form of implementation regulations, any conflicts between this new law and the older established EB immigration practices shall remain banished to the limbo of "grey areas".

if you feel that you are "imprisoned" by all this, or your path to career advancement is impeded, welcome to the club.
 
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I485 & Job Change

Pork Chop and Rest who replied to my post,

Thanks so much for your reply. According to my company attorney, it is important that once I485 is filed, one should at least stay put in the same geographical location and not change jobs (either within the same company or another company) for at least 180 days. According to him, BCIS has stated this fact during their June 2003 annual conference. He further add that enforcement is a big issue and advise me to exercise prudence.

What I dont understand is why restrict us? Can anyone throw some light on this LC? Is it true that the position filed during LC is for a position that one will eventually assume once I140 is approved and not his current position? If so, there should not be a problem for anyone one who has filed I485 < 180 days to be transferred to another department, offered a promotion or relocation within the same organization? Any views out there?

So bottom line for me now is I will probably negotiate with my company to delay my relocation till Nov 03 while I stay put in my current "hole" here. And I may consider shuttling between my current location and CA doing the new role. My worry is the pay stub.

Any one awaiting I140/I485 and AP has any RFE experience to share? Will they ask for most recent pay stub? I have submitted my pay stub when I filed for I485.

Thanks. and Have a great evening :)
 
kclee60

Like I mentioned earlier, LC is for a particular position to prove that you are the best suited person. So, if you are going to take a different position, then your employer has to prove to the DOL that again you are the best suited for that new position.

It is great that your employer value your skills, but don't you think there is an American who is qualified to fill this Account engineer position but over-qualified for a consulting engineer? The primary goal of DOL and BCIS is to protect Americans with skills.

I think we should be happy that we have AC21, and we can change jobs after 180 days. Stay put. Nov will come in no time.
 
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