Invoke AC21 - I40 revoke by employer

G

GCCovet

Registered Users (C)
Hi,
My status:
PD: 5/2004
Cat: EB3
I-140 : AD 5/2006
I-485 : RD 7/2007 (during the surge)
EAD : Recd. EAD for myself and spouse
Status : H1 8th year( had 3 year extension. H1B expires end of 2009).


Question:
I was debating on changing employment using EAD as 6+ months have passed since I-485 filing. I have a nice offer from the client I am working with. Client is willing to provide same job title (programer analyst) and job duties as described in LC approval.

Paralegal of law firm mentioned that if I switch job (employer)using AC21 and if my employer revokes I-140, there are fair chances of my 485 getting denied. I have not talked with my current employer, as I don't think he will support me (he will loose money which I am making for him!!!).

What should I do to avoid denial of 485? What are my other alternatives? Anybody gone thru same situation?

I will appreciate any suggestions/ideas.

Thanks a lot.

-GCCovet
 
GCCovet said:
Hi,
My status:
PD: 5/2004
Cat: EB3
I-140 : AD 5/2006
I-485 : RD 7/2007 (during the surge)
EAD : Recd. EAD for myself and spouse
Status : H1 8th year( had 3 year extension. H1B expires end of 2009).


Question:
I was debating on changing employment using EAD as 6+ months have passed since I-485 filing. I have a nice offer from the client I am working with. Client is willing to provide same job title (programer analyst) and job duties as described in LC approval.

Paralegal of law firm mentioned that if I switch job (employer)using AC21 and if my employer revokes I-140, there are fair chances of my 485 getting denied. I have not talked with my current employer, as I don't think he will support me (he will loose money which I am making for him!!!).

What should I do to avoid denial of 485? What are my other alternatives? Anybody gone thru same situation?

I will appreciate any suggestions/ideas.

Thanks a lot.

-GCCovet
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Since your I140 is approved and I485 is > 180 days pending, I140 revocation should not result in 485 denial. There can be RFE etc but tell that you used AC21
 
GCCovet said:
Hi,
My status:
PD: 5/2004
Cat: EB3
I-140 : AD 5/2006
I-485 : RD 7/2007 (during the surge)
EAD : Recd. EAD for myself and spouse
Status : H1 8th year( had 3 year extension. H1B expires end of 2009).


Question:
I was debating on changing employment using EAD as 6+ months have passed since I-485 filing. I have a nice offer from the client I am working with. Client is willing to provide same job title (programer analyst) and job duties as described in LC approval.
-----------------------you ARE eligible to use AC21 and can join new employer
Paralegal of law firm mentioned that if I switch job (employer)using AC21 and if my employer revokes I-140, there are fair chances of my 485 getting denied.
-----------wrong info. Did you talked to the Law office of your Present employer??????? if yes then dont talk to your present employer Lawyer or Paralegal
I have not talked with my current employer, as I don't think he will support me (he will loose money which I am making for him!!!).

What should I do to avoid denial of 485? What are my other alternatives?
---------------------even if the past employer revoke the approved I-140 still you are eligible for AC21. why do you fear the denial of 485? why I-485 will be denied?
** best option is dont inform your present employer that you are going to change, let the new employer file H1 transfer for you, once you get H1 filing reciept then join the new employer. nothing wrong if you join with EAD but H1 status will be good back up for you. once change the employer then hire YOUR lawyer or take the services of new Company lawyer and revoke the G28 sent by past company lawyer by writing to USCIS .

Anybody gone thru same situation?

I will appreciate any suggestions/ideas.

Thanks a lot.

-GCCovet
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-------------------------
 
After your 140 is approved, a revoke will have no issues. Talk to the lawyer, not the paralegal. Make sure you inform about the job change/lawyer change to USCIS by filing AC21 paperwork with new employer info and saying that the job is similar/same.
 
For information sake, is it necessary for GCCovet to obtain the LC and I-140 approval copy? Several employers does not share the above with the employees ...
 
Also, if you do not plan on using the same attorney, then make sure you revoke the G28 authorization too.


Stoned!
 
I have a question here:

Since GC is for future job, on what basis can employer revoke a I140 (especially when there is no LC substitution now)? Shouldn't USCIS look closely at all such employers? why should employee leaving make future job disappear? Doesn't it sound fishy on part of employer?
 
calabor said:
I have a question here:

Since GC is for future job, on what basis can employer revoke a I140 (especially when there is no LC substitution now)?
-I-140 is filed by employer and can revoke any time, no reason to be given to USCIS
Shouldn't USCIS look closely at all such employers?
---------------------Why?
why should employee leaving make future job disappear?
---------------Because employee is not going to work with them after GC and employer knows that
Doesn't it sound fishy on part of employer?
---------------No
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-----------------
 
why should employee leaving make future job disappear?
---------------Because employee is not going to work with them after GC and employer knows that

Employee will work for employer once the GC is approved. Its the future job that the employee accepted (with the LC wages and first class treatment for argument's sake) , and employer can look no farther into future than anybody.


Doesn't it sound fishy on part of employer?
---------------No
Assuming employee *is willing* to work for the employer after GC appeoval, what other possible reason can there be for withdrawal/revocation? That the job is no longer offered, isn't it? Earlier there was a valid reason that the job is being offered to someone else. Thats no longer easy now. Another can be that job is still there, but employer does not want the hassle of RFE's since he doesn't believe employee will join (which is what you pointed out). But since this exact point is contentious (that employer somehow "knows" employee's intentions), it makes the system prone to abuse by employer. At the very least, USCIS should keep a correlation of employee leaving and job disappearing. Such a correlation is infact kept for withdrawn 485s .. which is employee form.
 
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calabor said:
I have a question here:

Since GC is for future job, on what basis can employer revoke a I140 (especially when there is no LC substitution now)? Shouldn't USCIS look closely at all such employers? why should employee leaving make future job disappear?
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Who says the job disappears? Maybe somebody else gets hired into the job. If the original employee has left, the employer will not normally expect them to come back. So there is no real reason for them to continue to keep the GC process alive for that employee.

If the employee has expressed the wish to come back upon GC approval, that doesn't mean the employer can afford to leave the job open until that time. Most employers need somebody in the position both before and after GC approval. If they hire somebody else into the job after you have left, do you expect them to kick out that person when your GC is approved?
 
calabor said:
why should employee leaving make future job disappear?
---------------Because employee is not going to work with them after GC and employer knows that

Employee will work for employer once the GC is approved. Its the future job that the employee accepted (with the LC wages and first class treatment for argument's sake) , and employer can look no farther into future than anybody.


Doesn't it sound fishy on part of employer?
---------------No
Assuming employee *is willing* to work for the employer after GC appeoval, what other possible reason can there be for withdrawal/revocation? That the job is no longer offered, isn't it? Earlier there was a valid reason that the job is being offered to someone else. Thats no longer easy now. Another can be that job is still there, but employer does not want the hassle of RFE's since he doesn't believe employee will join (which is what you pointed out). But since this exact point is contentious (that employer somehow "knows" employee's intentions), it makes the system prone to abuse by employer. At the very least, USCIS should keep a correlation of employee leaving and job disappearing. Such a correlation is infact kept for withdrawn 485s .. which is employee form.
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Job will not disappear. The employee will disappear. Employer may need to hire some one for that job. If it disappears by employee resignation then that is fraud.

If someone is abusing the law it is DOL/USCIS problem. Not employer or employee problem. As Long as you are in within the Legal limit you are fine.

There is very thin line between immoral and illegal.
 
ginnu said:
-----------------
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tammy2 said:
Job will not disappear. The employee will disappear. Employer may need to hire some one for that job. If it disappears by employee resignation then that is fraud.

If someone is abusing the law it is DOL/USCIS problem. Not employer or employee problem. As Long as you are in within the Legal limit you are fine.

There is very thin line between immoral and illegal.
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The true job put on the LC is expected to come into existence when the 485 is approved. This is even recognized by the USCIS, otherwise why does USCIS allow LCA wages for the job and not the LC wages? USCIS explicitly states intent of joining, not actually doing so already. Its the future job, there is no mistake about it. The future job can exist today, but then it should be paid according to LC. So only case where it seems reasonable to revoke/withdraw I140 is when employer wants to fill the future job slot (that exists today) with someone else who is a non-immigrant (Why? since LC was filed saying no citizen/perm resident is available to fill the slot, how come he could find one in a jiffy now?). Then obviously the employer should be able to show a hiring and new LC / I140 sometime around revocation.
Many employers will be able to show this, and these employers will not be the ones that employee really leaves, will they?
 
calabor said:
So only case where it seems reasonable to revoke/withdraw I140 is when employer wants to fill the future job slot (that exists today) with someone else who is a non-immigrant
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Do not confuse I-140 revocation with LC withdrawal. The I-140 says that the job availability as described by the LC is going to be filled by a specific alien. If the alien no longer intends to take the job (or the employer no longer wishes to hire them), then it makes sense to withdraw the I-140.

I don't see where the employer is under any sort of obligation to fill that position right away.
 
TheRealCanadian said:
Do not confuse I-140 revocation with LC withdrawal. The I-140 says that the job availability as described by the LC is going to be filled by a specific alien. If the alien no longer intends to take the job (or the employer no longer wishes to hire them), then it makes sense to withdraw the I-140.

I don't see where the employer is under any sort of obligation to fill that position right away.
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True. But...

1) Let the alien speak for himself/herself about his intention of joining or not.
2) Why now the employer doesn't wish to employ him? what has changed? This is where I am chipping away.
3) The employer by filing LC has said there is a job opening. Can he say "I have no obligation to fill the position right away" to each citizen that applies at LC stage? If he is in no hurry, then that position no longer exists for all practical purposes.

As you said, by withdrawing I140 he is saying I dont wish to employ this particular alien although the job is still there. (Why why why?)
or the job itself is not there (Why suddenly not?)
or I dont believe alien will join (Why the belief changed?)

Only the last one seems reasonable, that too when the employee leaves while being paid the LC wages in the exact same position. In all other cases its just the whim of employer to assume so.

This isn't just some inconsequential discrepancy that exists. It seriously affects the alien and tilts the scales heavily towards the employer.
 
calabor said:
Let the alien speak for himself/herself about his intention of joining or not.
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The alien's intent to join the employer is irrelevant if the employer no longer intends to hire him or her.

Why now the employer doesn't wish to employ him? what has changed? This is where I am chipping away.
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It doesn't matter. So long as it's not a special area (race, religion, etc.) an employer can use whatever reason they want to decide not to hire someone.

Can he say "I have no obligation to fill the position right away" to each citizen that applies at LC stage? If he is in no hurry, then that position no longer exists for all practical purposes.
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Actually, the employer can do so. Just because there is an opening doesn't mean that an employer needs to fill it right away.

This isn't just some inconsequential discrepancy that exists. It seriously affects the alien and tilts the scales heavily towards the employer.
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It's always been like that. The employer is free to change their minds at any time, as is the alien. Once the 180 days have passed both can simply move on.
 
EAD or H1 to work when using AC21?

Ginnu / RealCanadian / Others,

I am on EB3 INDIA SEP 2004, and may take another 2 or 3 years to get my GC. So I guess it would be better to be on H1B.

If I change my employment using AC21, do I have to work on EAD only? or can I work on H1B once it is transfered on to new employer. I am on 9 th year H1B extension and I have to file 10th year extension.

If I want to work on H1B with new employer, is it better to join them after H1B approval or after I get the receipt?
 
Either way is fine. For H-1B, you can join after your new employer receive the recepit notice (assuming your current tenure is valid).
 
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panjan04 said:
Ginnu / RealCanadian / Others,

I am on EB3 INDIA SEP 2004, and may take another 2 or 3 years to get my GC.
So I guess it would be better to be on H1B.
-------------------Correct
If I change my employment using AC21, do I have to work on EAD only? or can I work on H1B once it is transfered on to new employer.
----------------best option to work on H1, let the new employer file H1 transfer and join once get the H1 filing reciept (no need to inform your Past company lawyer regarding AC21 or Past employer when new employer file H1 Transfer)
I am on 9 th year H1B extension and I have to file 10th year extension.

If I want to work on H1B with new employer, is it better to join them after H1B approval or after I get the receipt?

-------------you can join after get reciept.

*** nothing bad to keep Valid EAD as back up but if you inform new employer you have EAD he may not file H1 Transfer to save the Fee
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ginnu said:
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Thanks a lot for the inputs.

I have one more question.
Will spouse face any problems in POE when entering USA using Advanced parole if spouse is outside the country when principal applicant changed employment and invoke AC21?

Is it better to wait until spouse comes back in to USA and then change employment and invoke AC21?
 
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