Interesting question

[yeppo]

My current employer has sponsored both GC and H1. When my H1 lapsed in Oct I continued to work on EAD for him. However coming monday I am going to join the client company itself (jobd etc etc all same). My 485 is currently pending. All this is standard stuff. Here is the interesting part. However I will continue to get a payslip for couple of months from current employer as we get paid back to back.

So far so good.

If the 485 gets approved in that period (still get paid from old company) will I still be considered an employee of the old company (as they are clearing the payments and will issue a W2 as I would still be on their rolls) or can I invoke AC21 for the new firm. What do I do ?

Thks,

Yeppo

 

[TheRealCanadian]

If the 485 gets approved in that period (still get paid from old company) will I still be considered an employee of the old company

Will you be working for them? There's no problem if you're still getting paid but not working. Were we all to be so lucky.

 

[will_get_there]

Not Clear...

First of all its not clear to me how you are being paid by your previous employer if you do not work for them. Let me assume that you were not paid for some time and the previous employer is trying to cover up for those payments. I know some employers that pay less and keep rest money incas eyou go on bench and they pay the employee same money when they are on bench. In this case you are leaving them so they are paying you that money.

In anycase you are a candidate for Ac21 since your primary employer is the new employer you are joining and that employer is responsible for your future permanent job. If you do not use AC21 you are at risk since GC is for future permanent job and you don't have a permanent job with previous employer.

Since you are on EAD and not on H1, you can technically work for more than one employers so you are OK that way too.

I would say, send the AC21 letter from new employer and keep collecting payments from previous employer also. There should be no problem since you are on EAD.

 

[yeppo]

Thanks Guys,

And Yes they are paying me for work I have done. The reason for that is that they pay only when they get the payment from the client. So what I have worked till today when I leave will be paid when it gets in. Of course one could say that all dues should be cleared the day you actually quit but I am quite happy if the money comes to me now or later.

Rgds,

Yeppo

 

[hmd]

don't worry about the payments from present employer . since you will be working for the new EMployer (Client) as long as he is paying you can send those pay stubs which are from Client.

If you get approved before you inform AC21 then you got your GC from old employer.

 

[yeppo]

Hmd,

Thanks. This in fact has happened to a lot of folks. By the time they get around to sending the AC21 letter their 485 has got approved. If what you are saying is right would such people then have to quit their current new jobs and rejoin old employer ?

Rgds,

Yeppo

 

[hmd]

yeppo

well in that case i think the intent of joining the sponsering employer by the employee will come into play since it is EBbased, but if the employee can show that he joined the new employer before he got approved then there may be some hope. This all will come into play if USCIS comes to know about the job change .

Plus if there is valid reason (like termination etc) for quiting the old employer then there are ok
read the second post by ginnu ( which i am sure you might have already knew) from below thread

http://boards.immigration.com/showthread.php?t=153617


if you want to avoid this hassle and if you feel you might get approved before sending Ac21 then send the Ac21 right away ( like posting it next day after joining the new employer via certified mail) without waiting for paystubs if CIS wants to see your paystub then they will ask for it.

Don't ask me what happens if you I485 gets approved on the same day as you sent the Ac21 then GC is from old employer..

 

[hmd]

It is a common misconception that if one doesn't notify uscis of ac21 for a new employer that they have to go back to 140 employer upon greencard approval.

You are not required to notify uscis of use of ac21 (although it is recommended). If you have joined a new company before 485 is approved and it is same/similar job, you can continue with that company, irrespective of whether you notified uscis of ac21.

UN

I am not saying that you have to go back to your old employer if I-485 gets approved before you inform CIS about the job change. Yes it is not the law that you are required to inform CIS but it is "recommended" according to the memo.

If you don't inform the CIS then according to CIS the sponsoring employer is your old employer not the new one (or present one) so the question is if the person applies for citizenship (or renewal of GC which i don' t think will be an issue)then doesn't the intent of joining the employer who sponsered the GC won't come into play unless he has valid reason for quiting the sponsered employer like termination?? or he can show that he joined the new employer before I485 approval

 

[hmd]

Ginnu, is the only person who says you have to notify of ac21 and if you don't then you need to go back to 140 employer or it will cause citizenship issues.

The citizenship issue is your actions after 485 got approved. Within the laws/regulations, USCIS has five years from the date of approval of lawful permanent residency to revoke the greencard if they can establish that you were not eligible for it when it got approved.This part of the rules only relates upto the granting of 485.

I don't want to scare ppl or anything like that but for the sake argument how about CIS comes with argument that even though you qualify for AC21 but didnot have the "intent" to work for the sponsoring employer ( I am sure this argument won't stand a chance in the court ) and hence approved I485 can be revoked..

The Citizenship issue and other parts of the immigration laws cover scenarios where the greencard can be taken away for things you do after you have obtained greencard.

This is true because if do anything before the GC then your are deported right way (not for stuff like speeding or DOL (provided there is no crime involved) . so this doesn't come into play..

AC21 issues relate to your actions before you get greencard. Since the law doesn't require notification, USCIS basically has five years to revoke your greencard. Therefore, the only thing they can question even after it was approved was whether you met the terms of ac21 same/similar job. If you do then nothing can happen to your greencard for this issue.

about questioning the "intent" same as my first reply..

 

[hmd]

so UN
assuming that AOS and consular processing are treated the same ( which is very likely since both are EB based) doesn't it say that from below quotes from your post it is safe to stay with sponsoring employer atleast wait for 90 days. (to be safe add another 90 days then it comes to 6 months)

"the USCIS uses the standard created by Seihoon v. Levy."

And after 90 days, it is highly unlikely that USCIS will have a problem with the alien’s change of employment.

This however doesnot take AC21 into consideration since AC21 will mostly likely be used by ppl who are goign through AOS rather than consular processing

so it still doesn't answer the question of "intent" in case of AC21...

I am posting post from Ginnu which is also in this thread

Question of Obligation of 485-Approved-Alien to Work for the Employer

As more people will get 485 approvals, people question what their obligations are under the law.
Without doubt, Green Card does not mean one will become a permanent slave to the employer. Then what is their obligation?

There is no hard and fast rule on the question. It is basically the issue of "intent" of the employer and alien employee.
For instance, if the employer sponsored green card with no intention to keep him/her indefinitely, employer was commiting "fraud."
The same is true if the alien employee applies for green card with no intention to work for the employer indefinitely. It all boils down to question of "real intent" which is a "state of mind" that can be established by either a direct evidence or circumstantial evidence.
If one starts going into the open market to look for a permanent job with another employer and intends to move to the second employer as soon as the green card is granted through the current employer, it should be a classific example of fraud. Should the INS obtain such evidence, the INS may start cancellation proceeding. Additionally, if one quits the job as soon as one gets the green card approval, it will be construed as reflection of the state of mind of the alien that he/she did not have any intention to work for the employer. There are two relevant analogies on the required period of employment. DOL defines permanent employment as the one that lasts for a year or longer. On the other hand, in the nonimmigrant context, both the INS and the DOS adopt so-called the rule of presumption of misrepresentation in case an alien enters the U.S. on a certain type of visa and within 60 days attempts to change the status to other nonimmigrant visa or immigrant status. However, when it comes to presumption of certain state of mind, no court will accept one year period of time as the basis of determining one's state of mind. It is a close call, but unless there is a clear and direct evidence that the alien had such state of mind, it should be much less period than one year and definitely more than two or three months.
If an alien loses the job as soon as he/she gets the green card because of the factors which are beyond their control, the alien will be in good shape. For instance, if the alien is terminated by the employer within one week for whatever reasons, he/she will be in good shape. If the company shuts down in a few days, the alien will be in good shape, even though there is a question of employer having committed a misrepresentation as to the issue of continuing existence of permanent job at the time of INS approving the green card.
Please do not assume that even if one commits such a wrongdoing, one will permanently escape the net. In various occasions in the future, including naturalization application or immigrant petition for family members, it may haunt and throw another opportunity for the INS to review his/her immigration history. Wise persons will not form a "preconceived intent" to use the employer for the sole purpose of obtaining green card and immediately abandone that employer as soon as his/her scheme is achieved. Please remember that inasmuch as such state of mind was not formed at the time of obtaining the green card, but certain circumstanstances have developed afterwards, one is in good shape. Time of intent and time of act will be critically important when such legal tangle develops.

 

[hmd]

Once you have substituted the employer and 485 gets aproved then the burden would be on you that you intended to stay with that employer indefinitely and that is where the rapid course of events after 485 gets approved would come into play.

My question of "Intent" is after the I485 is approved not before the I485 approval.( which is pretty straight forward before the approval)

so what are these "rapid course of events" after I-485 approval and how are they determined or defined??

does the USCIS follow same 30-60-90 day formula as the Dept of State for AOS apps ??