Job Change after approval(AC21)

R

regbet2003

Registered Users (C)
Hi,
Mine is a AC21 case, got approval in July from B campany. My original application was filed by A Comapny.

Got RFE for employment verification, sent employment verification letter from company B. I recently came across a company which is offering me a permanent position in their firm.

Are there any limitations to change the emplyment after getting GC approval?

Taking AC21 case please suggest your ideas.


Thanks in advance,
VM
 
Here's what I found in the FAQ page.

Q72 After getting stamped in the passport for employment based immigration,
how long is an employee required to work with the employer who
sponsored the employee for immigration.

A72 There is NO prescribed time limit. There are a couple of considerations
that must be borne in mind. The basis for getting a GC are that you took
up a "permanent" position. If you leave too soon, BCIS may claim that you
did not intend to take the job up on a "permanent" basis.


Q73 Please discuss the consequences, immediately after obtaining
immigration (meaning within a day or two).

A73 a. If the employee voluntarily quits/leaves the employer.
You may have a problem.
b. If the employer fires the employee for performance related reasons.
You may have a problem.
c. If the employer fires the employee because of the personality
problems. You may have a problem.
d. If the employer lays-off the employee for economic reasons (lack of
adequate business or resources).
You may have a problem.
e. If the employer lays-off the employee to avoid payment of the agreed or
the promised salary (as stated on the Labor Certification or the Job Ad.)
You may have a problem.

Q74 Can a Permanent Resident Visa be revoked for any of the above stated
reasons?

A74 Yes
 
Hi c514468,
Thanks for the reply, after going through your answers I have question.

Your described conditions won't apply to AC21 case(I believe), I know that your conditions will apply to the people who are non- AC21 related case i.e. your conditions will apply to the original sponsor of the employee.

Please suggest.


Thanks,
VM
 
My understanding is that AC21 helps those who are waiting for their I-485 approval since it takes 1 - 1.5 years.

But in your case, your I-485 is approved. I don't think it matters whether you used AC21 or not once your I-485 is approved. They approved your petition on the basis of your working for a company (could be your original sponsor A or B) for permanent basis.

If BCIS finds out you left the company B as soon as you got your GC, they might get suspicious. They will surely find out if you try to get a citizenship.
 
If we look at the way they framed AC21 rule for time frame i.e. 180 days, it says that you have to work for the original sponsoring employer for at least 180 days from the RD of I-485 before you could change the employer and invoke AC21.

My observations are as follows:-

a) The condition for invoking AC21 is that you should have I-140 approved and your I-485 is pending for 180 or more days. This means that once your immigrant petition is approved(i.e. I-140), for all practical purposes you are an immigrant and it is just that you are expected to adjust your status to a permanant resident with I-485 petition since you have entered US in a different status.

b) Since they are explicitly saying that you have to work for a minimum of 180 for the employer who got your labor and I-140 aprovals, the same rule of 180 days are more also can be applied to change employer after getting the GC. This looks logical.

Therefore my impression is that the safe time frame to change employer after getting GC is 180 days.

This is purely my interpretation and should not be considered as legal openion.

Regards,
 
the one little thing most people overlook in AC-21...

... is this: AC-21 portability is no longer available once your GC is approved!

here is the rationale:

AC-21 is the portability of an approved I-140, which kicks in when your I-485 has remained pending for over 180 days (it is not "I-485 portability" as it is sometimes erroneously referred to). when you exercise this portability, your approved I-140 (and its underlying LC), which was owned by your original sponsoring employer, is now "inherited" by your new employer, who now becomes your sponsoring employer of record.

once you get your GC approved, your I-485 and I-140 "go out of scope", i.e. are no longer in existance, and therefore anything else that was dependent on them, including AC-21 portability, is no longer available. another example of this is if you are outside the u.s. when your I-485 gets approved, you cannot technically use your AP to return to the u.s., as it becomes invalid.

therefore, upon approval, all the classic laws of employment-based immigration kick back in, which state, inter alia, that you must take up and continue employment with your sponsoring employer on a permanent basis. all that AC-21 allowed you to do was change your sponsoring employer prior to approval; whoever was your sponsoring employer at the time of approval, that is the employer EB immigration law expects you to stay with.

so, here is the bizarre gist of AC-21: you can change employers before GC approval, but not after.

of course, "permanent" does not mean "perpetual"; user c514468 has already posted some portion of rajiv's FAQ relating to this. another portion of that FAQ that you can look up for yourself will discuss what length of employment tenure with your sponsoring employer can reasonably demonstrate permanent intent.

bottomline: if you fly the coop as soon as your GC comes through, or soon after (regardless if you had changed employers before approval), then be prepared to face consequences five years down the line when you apply for citizenship, or your GC comes up for renewal.
 
I am very much aware of the fact that AC21 is not applicable after one gets the GC.

What I was trying to drive at was compare the AC21 rule and post GC job change.

When they say that you need to stick to original GC sponsoring employer for atleast 180 days after the RD of I-485 for invoking AC21, why cannot we say that once GC is approved the time frame to change the employer is also 180 days.

This was only a logical argument and has no legal basis as far as I know.

I personally know someone who got her citizenship without any problem after she quit her GC sponsoring employer after about 6 months from the date of GC approval.

Regards,
 
This is getting scary, what Pork Chop is saying is you have to stick with the same employer for at least 5 more years until you get the citizenship other wise you might not be able to renew your GC. I have seen so many cases for EB based GC holders to change employers after their 485 approval but absolutely less than 5 years, I really wonder if any or all of them would be in trouble sooner or later per Pork's theory.
 
There is one key point which Pork Chop highlighted: Permanent does NOT mean perpetual. This means one has to work for the sponsoring employer for a reasonable amount of time after the I485 is approved.

What is reasonable? As you may have expected, BCIS has failed once again to define the time period. Attorney’s use varying timeframes when advising clients. A good rule of thumb is one year. That timeframe will usually put you in a safe area. Some will say 6 months is sufficient. I would guess that the safest is between 6 months to a year.

regards,
sadiq
 
sachdev & MYX

sachdev:
my apologies, dude! my earlier post was actually directed at regbet2003, who started this thread, which i failed to make very clear. it wasn't a comment on yours... i know you're an old warhorse, with a scar or two more than me :)

what you say is right on the ball, too. while AC-21 does not at any point say that the applicant must have been employed with the original sponsoring employer for any length of time (let alone 180 days), only that applicant's i485 should have remained pending for over 180 days, in actuality, starting with CSC, and now even NSC, adjudicators are asking for proof that all those invoking AC-21 worked for their original sponsors for at least 180 days, and are rejecting those applcations where the applicant changed jobs before 180 days.

i have posted earlier that this flies in the face all EB immigration law; the ironic thing about this is, if the applicant has never worked for their sponsoring employer throughout the pendency of their i485, and can assure an adjudicator in responding to an RFE or interview with supporting documents from the original i140 sponsor that they will work for the sponsor upon GC approval (and never mention AC-21), then their case is adjudicated under the old classic law ("EB GC is for future employment"), and they can still get their green cards! of course, in this case, they absolutely have to work for their original sponsors for a reasonable length of time.

MYX:
for cryin' out loud, MYX, where on earth did you read in my post that i am implying that you should remain employed with your sponsoring employer for 5 years??!!

i said in my post that you should look up rajiv khanna's FAQ to find out more about what lengths of employment do and do not demonstrate your permanent intent. let me serve it here on a silver platter:

Q39 What is the indication of "permanency" while working with my employer after getting my GC?.

A39 The basic premise (or theory) behind permanent residence through offer of employment is that an employee is accepting a job on a "permanent" bases.
Normally, I would say working for one year or more with the same employer after getting your GC is PROBABLY enough indication of permanency. Less than 4-5 months is perhaps evidence to the contrary But REMEMBER, this is just my own guess. Technically speaking, the moment you decide that you will leave after a certain period of time, "permanent" intent is gone.


here's a link to it: Frequently Asked Questions : Green Card
 
Last edited by a moderator:
First, appology to Pork for slightly misunderstood you; second, I am still not getting the picture, even after reading rajiv khanna's FAQ, there is no specific definition of how much is "a certain period of time", and if BCIS wants to screw you, they can always say not enough even if it is a year or 2 years. Isn't that true? If yes, then you better stay for 5 years.

And third, what about relocation to a different geographical location with the same company? I remember Pork had an analysis for that situation for when 485 is pending, but what about after approval one works in an office in Texas (TSC) for the same employer while 485 was approved in Missouri (NSC)?
 
MYX

hey, dude, no offence taken... apologies entirely unnecessary :)

it is certainly true, if they want to screw you, they can. having said that, though, you certainly have more rights as a permanent resident of five years standing if and when that time comes. for one, there are legal precedents: if there is a legal precedent (and there are tons of them) that most people who have stayed with their sponsoring employer for a year or more (even six months), then the BCIS (or rather its legal predecessor, the INS) has unquestioningly granted their citizenship applications, then you have a legal leg to stand on. an arbitrary and unreasonable deviation from the normal precedents will not stand up in a court of law. the new way to legally screw immigrants is to scream "national security", and all bets are off...

as remains what is a "reasonable" length of time, one that amply demonstrates "permanent intent", no attorney worth their salt will give you a number. again, what you have to go by are what most folks have done in the past. the norm there seems to be that anything less than six months is bad, a year or over is good. as to how you can make this work for you, that is judgement call for you.
 
i forgot to add a comment on relocation:

according to the strict letter of the law, your LC is specific to a geographic region. therefore, strictly speaking, your company cannot, and should not, post you to a new location immediately following your GC approval. there are ways around this, of course ("temporary" postings with paychecks coming to your old address etc). doing things smartly will help avoiding any questions or issues about intent later on.
 
Hi Pork,

Don't have to apologise "dosth". It is just a discussion and we are all expressing our respective views.

Regards,
 
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