Laid off in EAD
- Thread starter abouttime
- Start date
abouttime:
You can use AC21, IF
1 find similar job, new employer should pay the wages according to approved LC (try to get copy of I-140 and LC from employer or lawyer)
2 Your past employer should not revoke your I-140 and your I-485 should be pending 180 days (filed with approved I-140) if filed concurrent then 180 days for I-485 will be counted after I-140 is approved.
3 If possible try to join with H1 transfer (even if you have to pay the Fees) because if pending I-485 is denied then you will have status to stay and work on H1 and you can also start new LC as back up from new employer.
Still final AC21 regulations are not published, better to join on H1, if no alternatives then only use EAD.
You can use AC21, IF
1 find similar job, new employer should pay the wages according to approved LC (try to get copy of I-140 and LC from employer or lawyer)
2 Your past employer should not revoke your I-140 and your I-485 should be pending 180 days (filed with approved I-140) if filed concurrent then 180 days for I-485 will be counted after I-140 is approved.
3 If possible try to join with H1 transfer (even if you have to pay the Fees) because if pending I-485 is denied then you will have status to stay and work on H1 and you can also start new LC as back up from new employer.
Still final AC21 regulations are not published, better to join on H1, if no alternatives then only use EAD.
GCSeekerInd
Registered Users (C)
kjkool,
180 days(note calender days not business days) start from the date the 485 petition is filed not from the 140 approval.
abouttime,
Pray that there is no RFE on ur 140. U can still use AC21 for the simple reason assuming BCIS will not touch ur 485 case before 6 months !!
180 days(note calender days not business days) start from the date the 485 petition is filed not from the 140 approval.
abouttime,
Pray that there is no RFE on ur 140. U can still use AC21 for the simple reason assuming BCIS will not touch ur 485 case before 6 months !!
Kjkool:
“Ginnu, Can you please give some references for this. I want to make sure if 180 days start after I-140 Approval in concurrently filed cases.”
---Read the AC21 law it applies to the I-485 based on approved I-140, because when this law was passed the Concurrent I-140 and I-485 did not exist so the AC21 law does not say anything regarding concurrent filing. Base of any employment based I-485 is approved I-140. Please visit Murthy Chat and do some search, Read AC21 June Memo.
If you want to use AC21 then your I-485 should be pending 180 days based on approved I-140, many lawyers say that concurrent files may be able to use AC21 if they have I-485 pending for 180 days from the approval date of I-140, new job as Same/similar, new employer pays wages according to approved LC, AND I-140 should not be revoked by past employer.
Abouttime:
“But, my I-140 is not approved and I-485 filed concurrently is pending for less than 180 days? Am I still okay?”
--- You may be Ok when your I-140 gets approved and Your I-485 is pending more than 180 days after I-140 approval date and if your Employer does not Revoke I-140 and you fulfill other criteria of AC21.
If you would have filed I-485 based on approved I-140 and I-485 have been pending more than 180 days and Employer have not Revoked I-140 and you fulfilled other criteria of AC21 then you would have been Ok. At present situation you are not Ok, pray that your I-140 should be approved and then I-485 should be pending for more than 180 days and employer does not revoke your I-140 if gets approved
Join new employer by H1 transfer and maintain H1 status and also start new LC process that will be your safety net
“Ginnu, Can you please give some references for this. I want to make sure if 180 days start after I-140 Approval in concurrently filed cases.”
---Read the AC21 law it applies to the I-485 based on approved I-140, because when this law was passed the Concurrent I-140 and I-485 did not exist so the AC21 law does not say anything regarding concurrent filing. Base of any employment based I-485 is approved I-140. Please visit Murthy Chat and do some search, Read AC21 June Memo.
If you want to use AC21 then your I-485 should be pending 180 days based on approved I-140, many lawyers say that concurrent files may be able to use AC21 if they have I-485 pending for 180 days from the approval date of I-140, new job as Same/similar, new employer pays wages according to approved LC, AND I-140 should not be revoked by past employer.
Abouttime:
“But, my I-140 is not approved and I-485 filed concurrently is pending for less than 180 days? Am I still okay?”
--- You may be Ok when your I-140 gets approved and Your I-485 is pending more than 180 days after I-140 approval date and if your Employer does not Revoke I-140 and you fulfill other criteria of AC21.
If you would have filed I-485 based on approved I-140 and I-485 have been pending more than 180 days and Employer have not Revoked I-140 and you fulfilled other criteria of AC21 then you would have been Ok. At present situation you are not Ok, pray that your I-140 should be approved and then I-485 should be pending for more than 180 days and employer does not revoke your I-140 if gets approved
Join new employer by H1 transfer and maintain H1 status and also start new LC process that will be your safety net
kjkool:
"Ginnu, Can you please give some references for this. I want to make sure if 180 days start after I-140 Approval in concurrently filed cases."
Read below:
Concurrent filing and Ac21
http://www.murthy.com/UDportis.html
Portability and Concurrent Filing Issues
As regular readers of MurthyDotCom and the MurthyBulletin readers know, the INS has permitted concurrent filing of Forms I-140 (Immigrant Petition for Alien Worker) and I-485 (Application for Adjustment of Status) since July 31, 2002. This was widely applauded within the immigration community as a faster route to the green card. However, the process raises questions and concerns pertaining to the interaction of the concurrent filing procedure with the portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21).
When Does Portability Attach under AC21?
Since the passage of the Act in October 2000, various AC21 issues have been covered in the MurthyBulletin and are available on MurthyDotCom. AC21 portability allows for the approval of the I-485 through employment with a sponsor other than the employer who filed the labor certification. This "portability" is triggered after the I-485 has been pending, without decision, for 180 days or longer. The new employment position must be the "same or similar" to the position described in the labor certification. The technical reason the I-485 can be approved in this situation is that, under AC21, the I-140 petition remains valid with respect to the new employment in the situation described above. Therefore, the continuing validity of the I-140 petition is the essence of AC21 portability and the key to understanding its provisions.
Does Concurrent Filing Possibly Change AC21 Portability?
AC21 and the I-140 portability rule were created before the advent of concurrent filings. When I-140 portability was created through AC21, the I-140 had to be approved prior to the filing of the I-485. This was a long-standing requirement in immigration law. Therefore, all workers who were to use I-140 portability were to do so under the premise that the originally filed I-140 had already been approved. This raises important concerns for clients and practitioners alike regarding exactly how AC21 and concurrent filing work together. Is there portability if the I-140 is not approved? At what point is it "safe" to change jobs? At what point does the previous employer cease to have control over the I-140? There continue to be no regulations on AC21 even today - in January 2003 - over two years after passage of the AC21. The regulations may address some of these issues, but they appear to be a low priority for INS at this point in time, with the elimination of the INS and the advent of the Department of Homeland Security.
Liberal and Conservative Interpretations of AC21
There are liberal and conservative interpretations of AC21 and the I-140 portability rule. Those practitioners advocating on behalf of clients for a liberal interpretation may argue that portability attaches at the 180-day mark notwithstanding the non-approval of the I-140 petition. There are weaknesses in this argument, due to the wording of AC21 regarding the continuation of the validity of the I-140. This, presumably, requires a valid I-140 at some point. As attorneys acting in our role as "counselors," it may be best to encourage clients to take as conservative and safe a position as possible, while arguing and advocating an aggressive position for those who may have no choice, having been laid off or otherwise terminated from employment with the sponsor.
The conservative interpretation takes the position that the underlying I-140 must be approved in order for I-140 portability to attach. The argument for this view is because the portability wording from AC21, in section 204(j) of the Immigration and Naturalization Act (INA), states that the I-140 petition remains valid under certain conditions. “Remaining valid” is therefore interpreted to refer only to an I-140 that is actually valid (approved) at some point. This could exclude cases in which the I-140 is eventually denied or withdrawn, even if the denial or withdrawal occurs after 180 days. Simply put, there is a strong argument that the 180-day rule requires workers to have an approved I-140 at some point during the process and that, lacking the approval, the case is not approvable even after the 180-day point.
What this means for those with concurrently filed I-485s is that, to be safe, eligibility for portability benefits should not be presumed until the I-485 has been pending for 180 days or more AND the I-140 is approved. The 180 days would still be counted from the date of filing but the eligibility would not arise until both elements are met. Following are examples of the scenarios that may arise.
Scenario 1
The I-140/I-485 are filed concurrently. After 180 days, the I-140 has been neither approved nor denied. The foreign national changes jobs. The employer is displeased and withdraws the I-140 or fails to answer a Request for Evidence. There is no I-140 approval. Rather, there is a withdrawal or denial. In this case, it does not appear that the individual would be eligible for AC21 portability. There is no underlying, valid I-140 to "remain valid" so as to allow for the I-485 approval. Put another way, I-140 approval is needed for I-485 approval, even with AC21.
It should be noted that, in this scenario, withdrawing the I-140 prior to approval is different from revoking it after approval. I-140s can be withdrawn at any time prior to approval. After approval, if the employer no longer wishes to support the I-140, the employer can request that the INS revoke the approval. According to the INS, I-140 revocation after the I-485 has been pending for 180 days should not prevent I-485 approval.
Scenario 2
The I-140 and I-485 are filed concurrently. After 180 days, the I-140 has been neither approved nor denied. The individual stays in his job and, on the 200th day, the I-140 is approved. At this point it would appear that this person becomes eligible for AC21 portability, provided s/he had a job offer with a new employer in the same or a similar position.
Given the importance of the issues that arise at the crossroads of I-140 portability and/or concurrent flings, we at MurthyDotCom and the MurthyBulletin diligently follow all official announcements and report developments regarding these issues to our readers
"Ginnu, Can you please give some references for this. I want to make sure if 180 days start after I-140 Approval in concurrently filed cases."
Read below:
Concurrent filing and Ac21
http://www.murthy.com/UDportis.html
Portability and Concurrent Filing Issues
As regular readers of MurthyDotCom and the MurthyBulletin readers know, the INS has permitted concurrent filing of Forms I-140 (Immigrant Petition for Alien Worker) and I-485 (Application for Adjustment of Status) since July 31, 2002. This was widely applauded within the immigration community as a faster route to the green card. However, the process raises questions and concerns pertaining to the interaction of the concurrent filing procedure with the portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21).
When Does Portability Attach under AC21?
Since the passage of the Act in October 2000, various AC21 issues have been covered in the MurthyBulletin and are available on MurthyDotCom. AC21 portability allows for the approval of the I-485 through employment with a sponsor other than the employer who filed the labor certification. This "portability" is triggered after the I-485 has been pending, without decision, for 180 days or longer. The new employment position must be the "same or similar" to the position described in the labor certification. The technical reason the I-485 can be approved in this situation is that, under AC21, the I-140 petition remains valid with respect to the new employment in the situation described above. Therefore, the continuing validity of the I-140 petition is the essence of AC21 portability and the key to understanding its provisions.
Does Concurrent Filing Possibly Change AC21 Portability?
AC21 and the I-140 portability rule were created before the advent of concurrent filings. When I-140 portability was created through AC21, the I-140 had to be approved prior to the filing of the I-485. This was a long-standing requirement in immigration law. Therefore, all workers who were to use I-140 portability were to do so under the premise that the originally filed I-140 had already been approved. This raises important concerns for clients and practitioners alike regarding exactly how AC21 and concurrent filing work together. Is there portability if the I-140 is not approved? At what point is it "safe" to change jobs? At what point does the previous employer cease to have control over the I-140? There continue to be no regulations on AC21 even today - in January 2003 - over two years after passage of the AC21. The regulations may address some of these issues, but they appear to be a low priority for INS at this point in time, with the elimination of the INS and the advent of the Department of Homeland Security.
Liberal and Conservative Interpretations of AC21
There are liberal and conservative interpretations of AC21 and the I-140 portability rule. Those practitioners advocating on behalf of clients for a liberal interpretation may argue that portability attaches at the 180-day mark notwithstanding the non-approval of the I-140 petition. There are weaknesses in this argument, due to the wording of AC21 regarding the continuation of the validity of the I-140. This, presumably, requires a valid I-140 at some point. As attorneys acting in our role as "counselors," it may be best to encourage clients to take as conservative and safe a position as possible, while arguing and advocating an aggressive position for those who may have no choice, having been laid off or otherwise terminated from employment with the sponsor.
The conservative interpretation takes the position that the underlying I-140 must be approved in order for I-140 portability to attach. The argument for this view is because the portability wording from AC21, in section 204(j) of the Immigration and Naturalization Act (INA), states that the I-140 petition remains valid under certain conditions. “Remaining valid” is therefore interpreted to refer only to an I-140 that is actually valid (approved) at some point. This could exclude cases in which the I-140 is eventually denied or withdrawn, even if the denial or withdrawal occurs after 180 days. Simply put, there is a strong argument that the 180-day rule requires workers to have an approved I-140 at some point during the process and that, lacking the approval, the case is not approvable even after the 180-day point.
What this means for those with concurrently filed I-485s is that, to be safe, eligibility for portability benefits should not be presumed until the I-485 has been pending for 180 days or more AND the I-140 is approved. The 180 days would still be counted from the date of filing but the eligibility would not arise until both elements are met. Following are examples of the scenarios that may arise.
Scenario 1
The I-140/I-485 are filed concurrently. After 180 days, the I-140 has been neither approved nor denied. The foreign national changes jobs. The employer is displeased and withdraws the I-140 or fails to answer a Request for Evidence. There is no I-140 approval. Rather, there is a withdrawal or denial. In this case, it does not appear that the individual would be eligible for AC21 portability. There is no underlying, valid I-140 to "remain valid" so as to allow for the I-485 approval. Put another way, I-140 approval is needed for I-485 approval, even with AC21.
It should be noted that, in this scenario, withdrawing the I-140 prior to approval is different from revoking it after approval. I-140s can be withdrawn at any time prior to approval. After approval, if the employer no longer wishes to support the I-140, the employer can request that the INS revoke the approval. According to the INS, I-140 revocation after the I-485 has been pending for 180 days should not prevent I-485 approval.
Scenario 2
The I-140 and I-485 are filed concurrently. After 180 days, the I-140 has been neither approved nor denied. The individual stays in his job and, on the 200th day, the I-140 is approved. At this point it would appear that this person becomes eligible for AC21 portability, provided s/he had a job offer with a new employer in the same or a similar position.
Given the importance of the issues that arise at the crossroads of I-140 portability and/or concurrent flings, we at MurthyDotCom and the MurthyBulletin diligently follow all official announcements and report developments regarding these issues to our readers
Please Explain --ginnu
ginnu..,
Scenario 2
The I-140 and I-485 are filed concurrently. After 180 days, the I-140 has been neither approved nor denied. The individual stays in his job and, on the 200th day, the I-140 is approved. At this point it would appear that this person becomes eligible for AC21 portability, provided s/he had a job offer with a new employer in the same or a similar position.
Given the importance of the issues that arise at the crossroads of I-140 portability and/or concurrent flings, we at MurthyDotCom and the MurthyBulletin diligently follow all official announcements and report developments regarding these issues to our readers
-----------------------------------------------------------------------------------
The scenario 2 contradicts your argument, in scenario 2 the 140 cleared on the 180th day and on 200th day you are using AC21 that means the number of days passed your 140 is cleared on the 200th day is just 20 days eventhough 200 days have been passed since you applied 140/485 so where does your formula work
I am all confused by your lengthy !@#!@
ginnu..,
Scenario 2
The I-140 and I-485 are filed concurrently. After 180 days, the I-140 has been neither approved nor denied. The individual stays in his job and, on the 200th day, the I-140 is approved. At this point it would appear that this person becomes eligible for AC21 portability, provided s/he had a job offer with a new employer in the same or a similar position.
Given the importance of the issues that arise at the crossroads of I-140 portability and/or concurrent flings, we at MurthyDotCom and the MurthyBulletin diligently follow all official announcements and report developments regarding these issues to our readers
-----------------------------------------------------------------------------------
The scenario 2 contradicts your argument, in scenario 2 the 140 cleared on the 180th day and on 200th day you are using AC21 that means the number of days passed your 140 is cleared on the 200th day is just 20 days eventhough 200 days have been passed since you applied 140/485 so where does your formula work
I am all confused by your lengthy !@#!@
pchandr;
In this long story, The I-140 is approved on Day 200, not Day 180.
Ginnu, thanks for digging up this from murthy.
This is a part of your post;
What this means for those with concurrently filed I-485s is that, to be safe, eligibility for portability benefits should not be presumed until the I-485 has been pending for 180 days or more AND the I-140 is approved. The 180 days would still be counted from the date of filing but the eligibility would not arise until both elements are met.
I think the "AC21 180 day clock" starts when you file I-485, and continues to roll if I-140 is approved. It stops if I-140 is denied.
In this long story, The I-140 is approved on Day 200, not Day 180.
Ginnu, thanks for digging up this from murthy.
This is a part of your post;
What this means for those with concurrently filed I-485s is that, to be safe, eligibility for portability benefits should not be presumed until the I-485 has been pending for 180 days or more AND the I-140 is approved. The 180 days would still be counted from the date of filing but the eligibility would not arise until both elements are met.
I think the "AC21 180 day clock" starts when you file I-485, and continues to roll if I-140 is approved. It stops if I-140 is denied.
kjkool and ginnu
Ginnu
Yes i was wrong, i totally misunderstood your statement, i thought 180 days start from the day you clear your 140, but infact you meant to say that 180 days will get enabled only after 140 gets cleared and your 485 has been pending for 180 days
kjkool thanks for making me clear
Thanks..,
pchandr
Ginnu
Yes i was wrong, i totally misunderstood your statement, i thought 180 days start from the day you clear your 140, but infact you meant to say that 180 days will get enabled only after 140 gets cleared and your 485 has been pending for 180 days
kjkool thanks for making me clear
Thanks..,
pchandr