NEW AC21 MEMO( may 12,2005)
- Thread starter ginnu
- Start date
maybesomeday
Registered Users (C)
self-employment?
Very interesting that they discuss portability to self-employment:
Question 8. Can an alien port to self-employment under INA § 204(j)?
Answer: Yes, as long as the requirements are met.
Confusing that it then goes on to suggest that the "new employer and job offer" are legitimate. Well I guess I would need a letter written by myself to say that I am offering myself a job. Sounds pretty easy.
I'm guessing they mean that they would need to show that the work is similar and you actually have a business opportunity.
Very interesting that they discuss portability to self-employment:
Question 8. Can an alien port to self-employment under INA § 204(j)?
Answer: Yes, as long as the requirements are met.
Confusing that it then goes on to suggest that the "new employer and job offer" are legitimate. Well I guess I would need a letter written by myself to say that I am offering myself a job. Sounds pretty easy.
I'm guessing they mean that they would need to show that the work is similar and you actually have a business opportunity.
maybesomeday
Registered Users (C)
It's also great that he clarifies I-140 petioner intent needs to only be there at the time of I-140/I-485 filing and that the beneficiary had to have intent to be hired at approval. That will be much easier for me to prove now since I was still working for the company at that moment. It would have been much more difficult to show that the petitioner had intent to hire at the point of I-140 approval.
From: Attorney Matthew Oh (www.immigration-law.com)
05/18/2005: Visa Number Backlog and I-140 Portability
· The USCIS Memorandum of May 12, 2005 stipulates that the 180-day of I-485 filing will continue to run even during the period of visa number unavailability for him/her and the alien may change employment during the period of visa number unavailability inasmuch as the I-140 portability is satisfied and EB-485 is pending.
05/18/2005: Definition of "Same or Similar" Occupation Classification for I-140 Porting
· The USCIS Memorandum of May 12, 2005 clarifies that the "same or similar" will be determined on the basis of DOT or OES Codes. Accordingly, the new job must fall under the same DOT or OES with the labor certification job.
· The same rule will apply to the labor certification waived I-140/EB-485 cases. They will use the DOL's DOT or OES Codes to determine this requirement.
· Inasmuch as this requirement is met, the aliens in EB-1 cases like Multinational Corporate Executive/Manager petitions can port after 180 day of EB-485 filing taking a same or similar job with another employer.
· Alien can take new employment anywhere in the U.S. inasmuch as the new job falls under the same or similar occupational classification standards.
05/18/2005: USCIS Reverses Policy on I-140 Portability After EB-485 Pending 180 Days
· AILA has reported a new USCIS Memorandum of May 12, 2005 on AC 21 issues which have either been answered or unanswered. In the answered issues, the USCIS is amending its policies. One of these key issues which it reverses by this new memorandum is I-140 portability after 180 days of filing of EB-485 applications.
· When the alien beneficiary changes employment before I-140 petition is approved but I-485 application has been pending 180 days or longer, the USCIS field offices have been instructed not to automatically deny such I-140 petition and I-485 applications unless they first take the following steps:
o First determine whether the preponderance of the evidence establishes that the I-140 petition is approvable or would have been approvable, had it been adjudicated within 180 days.
o If the I-140 petition is approvable but for an ability to pay or any other issues relating to a time after the filing of the petition, the USCIS should approve the I-140 petition on its merits.
o The adjudicator should determine whether the new employment is "same or similar" occupational classification.
o If the answer is yes, the adjudicator should approve EB-485 applications.
· In taking the foregoing steps, should the adjudicator has an issue of RFE, particularly the issue of employer's ability to pay the proffered salay, the adjudicator should issue RFE, and upon receiving the RFE responses, if the evidence meets the approvable thresholds, the adjudicator should perform the foregoing procedure and conclude the adjudication of I-140 petition and I-485 application.
· In the context of RFE, if the response is not received or even if the response is received and the reponse does not adequately address the issues or the response is simply that the beneficiary no longer works for the petitioner, the petition is considered unapprovable and consequently the I-140 will be denied and at the same time, I-485 will also be denied.
05/18/2005: Change of Employment Before Reaching 180-day of EB-485 Filing and Its Affect on Pending I-140 Petition and EB-485 Application
· The USCIS AC 21 Memorandum of May 12, 2005 addresses the issue of changing of employment for the alien who filed concurrent I-140/EB-485 and changed employment before reaching 180 days. It states that the I-140 and EB-485 should not be denied solely on this basis inasmuch as it is established that the I-140 was filed concurrently with the I-485, the I-140 petition had the intent to employ the alien beneficairy, and the alien must also have intended to under the employment upon approval of I-485 application. Accordingly, the memo warns the adjudicators that they should not presume absence of such intent and take the I-140 and supporting documents themselves as prima facie evidence of such intent. They should rather issue RFE in appropriate cases or investigate the issue when it is warranted.
· However, following final decision of the USCIS prior to reaching 180 days of EB-485 application will lead to denial of the concurrently filed EB-485 applications:
o The petitioner withdraws the I-140 petition before reaching 180 days of EB-485 filing, or
o USCIS denies or revokes the I-140 petition. The same will apply even after 180 days of EB-485 filing. However, the petitioner's withdrawal of petition after 180 days of EB-485 filing will have no effect on the portability of I-140 petition and no effect on the adjudication of EB-485 applications.
05/18/2005: I-140 Portability and New Employer's Financial Ability to Pay Proffered Salary
· The USCIS AC 21 Memorandum of May 12, 2005 clarifies the policy that when the alien changes employer using AC 21 I-140 portability rule, the new employer does not have to prove anything but "same or similar occupational classification" and the adjudcators should not request or deny I-485 applications based on the new employer's financial ability to pay issue.
05/18/2005: Visa Number Backlog and I-140 Portability
· The USCIS Memorandum of May 12, 2005 stipulates that the 180-day of I-485 filing will continue to run even during the period of visa number unavailability for him/her and the alien may change employment during the period of visa number unavailability inasmuch as the I-140 portability is satisfied and EB-485 is pending.
05/18/2005: Definition of "Same or Similar" Occupation Classification for I-140 Porting
· The USCIS Memorandum of May 12, 2005 clarifies that the "same or similar" will be determined on the basis of DOT or OES Codes. Accordingly, the new job must fall under the same DOT or OES with the labor certification job.
· The same rule will apply to the labor certification waived I-140/EB-485 cases. They will use the DOL's DOT or OES Codes to determine this requirement.
· Inasmuch as this requirement is met, the aliens in EB-1 cases like Multinational Corporate Executive/Manager petitions can port after 180 day of EB-485 filing taking a same or similar job with another employer.
· Alien can take new employment anywhere in the U.S. inasmuch as the new job falls under the same or similar occupational classification standards.
05/18/2005: USCIS Reverses Policy on I-140 Portability After EB-485 Pending 180 Days
· AILA has reported a new USCIS Memorandum of May 12, 2005 on AC 21 issues which have either been answered or unanswered. In the answered issues, the USCIS is amending its policies. One of these key issues which it reverses by this new memorandum is I-140 portability after 180 days of filing of EB-485 applications.
· When the alien beneficiary changes employment before I-140 petition is approved but I-485 application has been pending 180 days or longer, the USCIS field offices have been instructed not to automatically deny such I-140 petition and I-485 applications unless they first take the following steps:
o First determine whether the preponderance of the evidence establishes that the I-140 petition is approvable or would have been approvable, had it been adjudicated within 180 days.
o If the I-140 petition is approvable but for an ability to pay or any other issues relating to a time after the filing of the petition, the USCIS should approve the I-140 petition on its merits.
o The adjudicator should determine whether the new employment is "same or similar" occupational classification.
o If the answer is yes, the adjudicator should approve EB-485 applications.
· In taking the foregoing steps, should the adjudicator has an issue of RFE, particularly the issue of employer's ability to pay the proffered salay, the adjudicator should issue RFE, and upon receiving the RFE responses, if the evidence meets the approvable thresholds, the adjudicator should perform the foregoing procedure and conclude the adjudication of I-140 petition and I-485 application.
· In the context of RFE, if the response is not received or even if the response is received and the reponse does not adequately address the issues or the response is simply that the beneficiary no longer works for the petitioner, the petition is considered unapprovable and consequently the I-140 will be denied and at the same time, I-485 will also be denied.
05/18/2005: Change of Employment Before Reaching 180-day of EB-485 Filing and Its Affect on Pending I-140 Petition and EB-485 Application
· The USCIS AC 21 Memorandum of May 12, 2005 addresses the issue of changing of employment for the alien who filed concurrent I-140/EB-485 and changed employment before reaching 180 days. It states that the I-140 and EB-485 should not be denied solely on this basis inasmuch as it is established that the I-140 was filed concurrently with the I-485, the I-140 petition had the intent to employ the alien beneficairy, and the alien must also have intended to under the employment upon approval of I-485 application. Accordingly, the memo warns the adjudicators that they should not presume absence of such intent and take the I-140 and supporting documents themselves as prima facie evidence of such intent. They should rather issue RFE in appropriate cases or investigate the issue when it is warranted.
· However, following final decision of the USCIS prior to reaching 180 days of EB-485 application will lead to denial of the concurrently filed EB-485 applications:
o The petitioner withdraws the I-140 petition before reaching 180 days of EB-485 filing, or
o USCIS denies or revokes the I-140 petition. The same will apply even after 180 days of EB-485 filing. However, the petitioner's withdrawal of petition after 180 days of EB-485 filing will have no effect on the portability of I-140 petition and no effect on the adjudication of EB-485 applications.
05/18/2005: I-140 Portability and New Employer's Financial Ability to Pay Proffered Salary
· The USCIS AC 21 Memorandum of May 12, 2005 clarifies the policy that when the alien changes employer using AC 21 I-140 portability rule, the new employer does not have to prove anything but "same or similar occupational classification" and the adjudcators should not request or deny I-485 applications based on the new employer's financial ability to pay issue.
How to find DOT or OES Code ?
Guys,
My 'OCC-Code' (for labor certification was 999.151-031
How do I find out what the DOT/OES codes are ?
and the codes related to them ?
I am looking to use AC-21 to change job to related field and different title.
regards
pdd123
Labor PD 12/2001 (EB3/self labor/infamous 151 code)
Labor AD 04/2004
I-140/485 ND: 08/09/04
I-140 AD:03/15/05
I-485 ????
Guys,
My 'OCC-Code' (for labor certification was 999.151-031
How do I find out what the DOT/OES codes are ?
and the codes related to them ?
I am looking to use AC-21 to change job to related field and different title.
regards
pdd123
Labor PD 12/2001 (EB3/self labor/infamous 151 code)
Labor AD 04/2004
I-140/485 ND: 08/09/04
I-140 AD:03/15/05
I-485 ????
Gurus Please clarify this thing...
Hi Ginnu and other gurus,
After 180 days pending of both 140 & 485 with the new memo we can change the job. But if the RFE is issued then which employer should reply ther RFE? The company which sponsered the GC or The new company which the applicant going join. If you can clarify this thing that will be great.
Thanks
KK
Hi Ginnu and other gurus,
After 180 days pending of both 140 & 485 with the new memo we can change the job. But if the RFE is issued then which employer should reply ther RFE? The company which sponsered the GC or The new company which the applicant going join. If you can clarify this thing that will be great.
Thanks
KK
maybesomeday
Registered Users (C)
I-140 RFE response comes from I-140 petitioning company.kriskish said:
GC_GoneCase
Registered Users (C)
That is the catch. The petitioner has to reply to RFE. If petitioner says employee no more with the company or decides not to reply, the case is denied.
In real term, nothing has changed for RFE related cases. The control is still with the petitioner.
For the cases where no RFE is required, would be benefitted as those would get approved even if the petitioner withdraws them after 180 days. That would benefit a lot of people.
In real term, nothing has changed for RFE related cases. The control is still with the petitioner.
For the cases where no RFE is required, would be benefitted as those would get approved even if the petitioner withdraws them after 180 days. That would benefit a lot of people.
kriskish said:
GCIsTortoise
Registered Users (C)
World is unfiar anyway. Acutally, I think it's safer to change job before I-485 apporval by invoking AC21 than right after I-485 approval. Isn't it ridiculous? That forces me start thinking changing job.
gc4now said:
GCIsTortoise
Registered Users (C)
Read this para from new memo:
Question 14. Must the alien have a new offer of employment at the time the I-485 is being adjudicated under the I-140 portability provisions?
Answer: Yes. The alien cannot still be looking for “same or similar” employment at the time the I-485 is being adjudicated under the adjustment portability provisions. The alien must be able to show there is a new valid offer of employment at the time the I-485 is adjudicated.
If you lose your job at the time of AOS, in theory, your GC is invalid. People are also talking how long is safe to change job after I-485, check thread "life after GC". If you change job, do it quick and pray I-485 not been approved during this phase. What a bummer!
Question 14. Must the alien have a new offer of employment at the time the I-485 is being adjudicated under the I-140 portability provisions?
Answer: Yes. The alien cannot still be looking for “same or similar” employment at the time the I-485 is being adjudicated under the adjustment portability provisions. The alien must be able to show there is a new valid offer of employment at the time the I-485 is adjudicated.
If you lose your job at the time of AOS, in theory, your GC is invalid. People are also talking how long is safe to change job after I-485, check thread "life after GC". If you change job, do it quick and pray I-485 not been approved during this phase. What a bummer!
pdd123 said:
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GCistortoise,
You have a point there,
but you are NOT going to use AC-21 AFTER your 485 is approved..
And when your 485 comes up for adjudication, you actually have your old job..
As far the question of how long you have to work for your GC sponsoring company after GC approval, it is a grey area.Some take the risk, some don't.
I know people who have changed jobs right after GC approval..
If you are unfortunate enough to lose your job during the 485 adjudication,how will USCIS find out if your ex-employer has not informed them ?
And if they don't know.. they will approve the 485
and you are free..
Some of my colleagues got their GC approval, but during the stamping, none of them were asked to show any proof of current employment..
--pdd123
You have a point there,
but you are NOT going to use AC-21 AFTER your 485 is approved..
And when your 485 comes up for adjudication, you actually have your old job..
As far the question of how long you have to work for your GC sponsoring company after GC approval, it is a grey area.Some take the risk, some don't.
I know people who have changed jobs right after GC approval..
If you are unfortunate enough to lose your job during the 485 adjudication,how will USCIS find out if your ex-employer has not informed them ?
And if they don't know.. they will approve the 485
and you are free..
Some of my colleagues got their GC approval, but during the stamping, none of them were asked to show any proof of current employment..
--pdd123
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Can anyone explain that if the 180-day really matters? I read the new memo, it seems that you are able to use AC21 after or even before the 180-day pending of I485. It seems to me that 180-day does NOT really matter. I-485 will be ok as long as the I-140 employer does not withdraw the I-140. Am I right?
GC_GoneCase
Registered Users (C)
After 180 days, if employer revokes approved 140, AC21 can save the GC.
Before 180 days, if employer revokes approved 140, it will be a problem.
Even now, a lot of people changed jobs before 180 days and got approvals as the employer did not go for withdrawl. It remains same from that prospective.
Before 180 days, if employer revokes approved 140, it will be a problem.
Even now, a lot of people changed jobs before 180 days and got approvals as the employer did not go for withdrawl. It remains same from that prospective.
cala said: