NEW AC21 MEMO( may 12,2005)

[GC_GoneCase]

In the momo, it is clarified that one must have a same or similar job at time of 485 approval e.g. if if there was an interview, one is not allowed to say " I am looking for a job" and get the GC. In others words, one must have a bona fide job or job offer at time of GC approval.

The memo does not say that one can not change the job after GC approval. One may have a bona fide job offer at time of GC but may get another one after GC approval as well. The memo is silent about new jobs after GC approval. I would say, it should not matter as no where in the memo there is any prohibitory clause against new jobs after GC.

That is my understanding from reading the memo.

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!

 

[kriskish]

The biggest drawback in the memo I see is:

After 180 days , Without 140 approval if somebody changes a job and gets a query then Petetioner has to reply for that RFE.. So if you see anyways this memo is not helping much.. atleast for me.. any comments or suggestions are welcome..
Thanks
KK

 

[cala]

Does this mean I can apply AC21 the next day after filing I-485? As long as the I-140 employer does not withdraw I-140 for the next 180 days, I'll be ok for I-485 on new employer?

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.

 

[GCIsTortoise]

What I understand is that you got to file AC21 to inform CIS you switched job then RFE will go to new employer, otherwise it will go to old one. As long as your new employer can resolve RFE like ability to pay, you're ok.

The biggest drawback in the memo I see is:

After 180 days , Without 140 approval if somebody changes a job and gets a query then Petetioner has to reply for that RFE.. So if you see anyways this memo is not helping much.. atleast for me.. any comments or suggestions are welcome..
Thanks
KK

 

[kriskish]

What I understand is that you got to file AC21 to inform CIS you switched job then RFE will go to new employer, otherwise it will go to old one. As long as your new employer can resolve RFE like ability to pay, you're ok.

Are you sure? I think that is the case at 485. Not at the I-140. That is my understanding. GCIsTortoise or any other gurus please respond to this. My last date with the company is July 1st. I have a job in my hands and its a big company no problems of ability to pay or anything. But just because of RFE (it may or may not be issued for me) I not thinking of going for AC21 without 140 approval. Gurus please shed some light.
Thanks
KK

 

[tammy2]

What I understand is that you got to file AC21 to inform CIS you switched job then RFE will go to new employer, otherwise it will go to old one. As long as your new employer can resolve RFE like ability to pay, you're ok.

It does not sound like that. All new employer is provide an EVL. If there is ability to pay issue then it will go to the employer who had the Labor. He can kill your I-485 by not answering that RFE. I got green card like this only. My layoff was within 10 days after applying I-485 pending I-140.

Only consolation is withdrawal of the I-140 has no effect on your I-485 once you cross the 180 days barrier. This new memo does not completely eliminate employer mercy factor until your I-140 is approved. Memo does not sound exiting for me

 

[willget]

When look into the memo detail, there are confusions here:

A. Review the pending I-140 petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within 180 days. If the petition is approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on it’s merits. Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I-140 portability purposes.
B. If additional evidence is necessary to resolve a material post-filing issue such as ability to pay, an RFE can be sent to try to resolve the issue. When a response is received, and if the petition is approvable, follow the procedures in part A

See, how could samething(ability to pay) was mentioned twice and each have it's own treatment? am I mis-understand something here?

 

[The Mask]

AC-21 Memo Question

In light of this new ac-21 memo, can you provide some advice to my situation

1. Labor PD 7/2001, I-140 Approved 11/04, I-485 ND - 06/05, 2nd EAD approved 05/05, FP(Bio-metrics and FP) done and results received 03/05.

I am still with my original labor filing company and I am very close to getting laid off from there. I have had a couple of promotions over these last 5 years. If I get laid off, I have to take a job(demotion) so that the new job description matches with the one on my labor. My current employer does not withdraw the I-140 petition(I have checked with few of my collegues who were laid off earlier). My question is:-

1. If I find a new job, should I have to inform INS and use AC-21 or just not inform the INS and wait for RFE
2. If I get a RFE, Can I join a new employer(desi consulting firm) who can give me a EVL similar to the one on labor

Thanks,
Kedar

 

[winterspring]

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.

I don't understand this. "The alien cannot still be looking for “same or similar” employment" why?

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!

does it mean you can't use AC21 during this phase?

 

[winterspring]

I had filed 140/485 concurrently and my 140 is approved and it is more than 180 days since my concurrent filing. According to this new memo my employer can't revoke my 140, is that right?

 

[fast_gc_seeker]

unfortunately this new memo still dosent say anything if sending AC-21 document is necessary after a leaving 140 petitioner. I'm sure thousands of people are still unclear to send AC-21 or not.

 

[GC_GoneCase]

correction

As per the memo, the answer is probably yes. It is another issue that USCIS can question the intent at time of filing 140 petition if someone is laid off or leaves the company a day after filing GC.

If you see the mail posted by tammy 2 on this thread, he was laid off after 10 days of filing with pending 140 / 485 but got the GC. As the GC is for future job, as long as the petitioner does not withdraw 140, one should be fine.

That is why it is always better to wait for 180 days of pending 485 and 140 approval as the employer would lose control on the GC due to portability of 140 under AC21.

Does this mean I can apply AC21 the next day after filing I-485? As long as the I-140 employer does not withdraw I-140 for the next 180 days, I'll be ok for I-485 on new employer?

 

[tammy2]

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?

You cannot send the AC-21 letter next day. AC-21 letter is change of intent letter. All AC-21 wants is change of the intent should not occur within 180 days. It applies to both employer as well as employee.

Also note that if your I-485 gets approved within 180 days you are not allowed use AC-21. You have to work for the employer who applied the Labor

 

[cala]

What if one got laidoff right after filing I-140 & 485. Does he/she have to wait for 180 days to send AC21 letter? This
does not make sense, since intention had been changed already.

You cannot send the AC-21 letter next day. AC-21 letter is change of intent letter. All AC-21 wants is change of the intent should not occur within 180 days. It applies to both employer as well as employee.

Also note that if your I-485 gets approved within 180 days you are not allowed use AC-21. You have to work for the employer who applied the Labor

 

[gc_2006]

tammy2,

how did you proceed after you were laid-off?I got laid off after 1 1/2 month after filing I-485/I-140 (I-140 had been pending 2 months longer already).
I got a new job for 2 1/2 months now and didn't bother much about AC-21 anymore since I thought I couldn't use it.
Now my 180 days are approaching (June 27th, 2005). What's the best way to proceed. Old employer threatened to withdraw I-140 after lay-off since they closed plant down and view this as not having a 'bona fide' job anymore. However I-140/I-485 still show pending at USCIS system.

 

[ginnu]

tammy2,

how did you proceed after you were laid-off?
--------wait for tammy2 reply
I got laid off after 1 1/2 month after filing I-485/I-140 (I-140 had been pending 2 months longer already).
I got a new job for 2 1/2 months now and didn't bother much about AC-21 anymore since I thought I couldn't use it.
Now my 180 days are approaching (June 27th, 2005). What's the best way to proceed. Old employer threatened to withdraw I-140 after lay-off since they closed plant down and view this as not having a 'bona fide' job anymore. However I-140/I-485 still show pending at USCIS system.
---------------- I know a similar case like your situation, persons I-140, I-485 filed and he was laid off after 1 month of I-140 and I-485 filing, he joined new employer with H1 transfer( as back up filed LC through new employer that got approved filed I-140 that also got approved and filed second I-485 based on new I-140) his I-485 filed based on previous employer I-140 got transfred to local office for interview at the time of Interview officer just asked new employer job offer letter case was approved (local USCIS newark NJ)
I think in the above case past employer did not withdraw/ revoke I-140 while his I-485 was pending more than 180 days .
** in your case if the I-485 is pending more than 180 days and past employer has not sent letter to revoke or cancelled the I-140 before I-485 hit 180 days It seems you are safe( you did not providide info if I-140 approved or still pending) FYI the online status sometime gives wrong info.
if I-140 is approved you can try FOIA

 

[tammy2]

What if one got laidoff right after filing I-140 & 485. Does he/she have to wait for 180 days to send AC21 letter? This
does not make sense, since intention had been changed already.

So Your Employer intension is changed. So if he writes it to USCIS that you are doomed. If he does not inform USCIS then your intension is not changed. It will change only after 180 days that is when you inform.

If you try to make the sense then you will have go and search for another Labor.

 

[tammy2]

tammy2,

how did you proceed after you were laid-off?I got laid off after 1 1/2 month after filing I-485/I-140 (I-140 had been pending 2 months longer already).
I got a new job for 2 1/2 months now and didn't bother much about AC-21 anymore since I thought I couldn't use it.
Now my 180 days are approaching (June 27th, 2005). What's the best way to proceed. Old employer threatened to withdraw I-140 after lay-off since they closed plant down and view this as not having a 'bona fide' job anymore. However I-140/I-485 still show pending at USCIS system.

I was waiting until approval of I-140. It took 14 months for I-140. My company guys were getting I-140 within two to three months. Couple of month after I-140 I sent EVL on my own. By that time already I was in fourth company and third State. All job changes with H1.

I got I-485 without RFE
I would suggest just wait until your I-140 approval. Find same or similar job you should be OK

 

[cala]

So Your Employer intension is changed. So if he writes it to USCIS that you are doomed. If he does not inform USCIS then your intension is not changed. It will change only after 180 days that is when you inform.

If you try to make the sense then you will have go and search for another Labor.

But employer's intention is one of the criteria, too. How could you show CIS that employer still had intention? Only based on they did not withdraw I-140?

 

[ginnu]

But employer's intention is one of the criteria, too. How could you show CIS that employer still had intention?
Only based on they did not withdraw I-140?
-YES and tammy2 used AC21