INS playing HANGMAN with CONCURRENT FILERS FATE

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GeorgeMichael

Registered Users (C)
Hello ,

I understand after reading a couple of posts that concurrent filers from nebraska cannot invoke AC21 ( irrespective of 140 approval or non approval). Assume that employer does not revoke/withdraw 140 or answer RFE's

The very purpose of ohato memo was to speed up the backlog in 140 / 485 processing.

As I understand now, For a person whoz 140 / 485 has been filed concurrently and FP / Name check cleared his concurrently filed 140 will be taken up for adjudication only once his 485 dates are current.(which will take for ever) Also he cannot use AC21 even though his 180 days is over.

Dont you think this new situation fails to fulfill the reason why AC21 was introduced.

I think this is very bad and just kills the primary reason of Ohato memo( to speed up 140 / 485 processing and reduce backlogs) and AC21 ( to give freedom to the employee and 180 days)

In this case what is the point in issuancing of EAD's....There is no need to issue an EAD since 140 will clear only with 485 and anyway once cannot invoke AC21 ......WHAT IS THE USE OF EAD (IS it just waste of 175 $ and lawyer fees ???)

PLEASE GIVE UR COMMENTS ON THE SAME
 
GeorgeMischael- you are abolutely right: I filed I-140/1-485 concurrently, I have EAD but never used it sinvce I work on my H1 (as a backup in case I-140 does not get approved). After all the change in the past several months (Ohata memo etc.) I do not intend to extend my EAD once it expires - it definitely is a waste of money for many concurrent filers (not everyone's situation is the same though).
 
Ac21

Here's my understanding - Gurus, please correct me if I am wrong:

GC is for a future job. What AC21 allows you to do is "switch" the employer for this future job. The CIS "does not care" who you work for until your GC is approved. It does care whether you have an authorization to work. In other words, if you work on an H1, you must work only for the petitioning employer and if you work on an EAD, you can work for any and as many employers you want (minimum wage is the only restriction, and you have to pay your taxes). If you have neither H1 or EAD, you can stay in the country, but not work. In such a case, CIS will most likely ask you how you supported yourself.

However, whether or not they currently employ you, the petitioning employer must prove the ability to pay the "profferred wage" throughout the period starting from the "time the priority date is established" to the time the "permanent residence is granted". What is also unclear in AC21 is which employer needs to prove the ability to pay. Logically it should be the future (or the new) employer, but when has the CIS really followed logic? The AC21 law does not say anything about this. 8 CFR 204.5(g)(2) mentions "the petitioning employer", so technically it is the employer who filed the petition.

Anywhere along the way, if the employer petitioning for the immigrant worker expresses the loss of intention to hire the employee in the future (i.e. upon approval of permanent residence), the CIS has the right to deny the application. At that point, the applicant has the "right" to use AC21, if they qualify. This is where the problem lies.

So, an EAD is not useless. If your "ex-employer" expresses the intention to hire you back when you are a permanent resident, you are fine. The employer would have to continue to prove the ability to pay your profferred wage.

To ensure that you did not fraudulently get permanent residence, you'd need to work for the petitioning employer for a reasonable amount of time after the GC is approved (this varies from 3 to 6 to 12 months and its also important to document whether it was the employee or the employer whose "intention" was changed).
 
I do not intend to switch to another employer, even after I get (if I get) GC, so my case is pretty simple, and that is why I am sorry I applied for EAD in the first place. I followed my lawyer's advice months ago, when we all believed CIS will process concurrent cases following the previous routine: first you get I-140 approved, work with EAD and wait for I-485 to get approved. Concurrent filers, especially the recent ones (FY 2003, early FY 2004) seem not to be getting I-140 approved within the time frame noted in receipt notice (150-180 days), and not even in regard to the current proc. dates in the CIS website. So H1 works well (but only if you still have several more years to use it, not if you are now in your 5th or 6th H1 year). Of course, it would be really nice if CIS would really try to adjudicate cases following I-140 RD in concurrent applications while checking if I-485 is ready at that moment, as Ohata memo intends. However it looks like something they cannot do in the foreseeable future. The total backlog of all kind sof applications is simply huge.
 
workpermit02 said:
What happens if i quit my GC spnoser employer in couple months after getting GC?
Click to expand...

That question has been asked before. There is no problem with it. Some might say you need to work 6 months before quiting. That's BS. You could quit the day after getting your GC and never see an impact in your citizenship process.
 
stonewall,

I am in similar position like you, but I don't think it's a good idea to stop processing your EAD or AP, especilly if you're in 7th year extension. We never know how CIS changes it's processing time or methods for all applications, so if you get a chance to get your EAD/AP now...just do it whether it's a renewal or first time...at the same time it's not worth to pay $ to Attorney to process your EAD/AP ...you could do it yourself.
 
Thanks for the advice lc2003 - I am still very far from 7th H1 year and still have a valid EAD (that I did not use), so we'll see what happens with CIS processing in the meantime. Cheers!
 
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