New Ac21 Memo

from: 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:
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.
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.
The adjudicator should determine whether the new employment is "same or similar" occupational classification.
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:
The petitioner withdraws the I-140 petition before reaching 180 days of EB-485 filing, or
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.
 
compiler said:
Has the USCIS answered whether the new job salary must meet the original LC PW or not?
Click to expand...

Yes, salary issue has been addressed. The new AC21 says that salary is not a issue as long as there is not a major difference between the two salaries.

My interpretation of the salary issue:

If the LC PW was 100K and now the AC21 job gives 80K (ofcourse anything over 100K is perfectly fine), it shouldn't be a problem. But if the new AC21 job salary is say 50K, it might lead to a RFE for the huge difference in salary.

Hope this helps.

Any other thoughts...
 
H1BneedGC said:
Yes, salary issue has been addressed.
If the LC PW was 100K and now the AC21 job gives 80K (ofcourse anything over 100K is perfectly fine), it shouldn't be a problem. But if the new AC21 job salary is say 50K, it might lead to a RFE for the huge difference in salary.

Hope this helps.

Any other thoughts...
Click to expand...

Thanks for the info. So you think if the salary goes up to 130 or 150 K that is not considered substantial difference but if it is 50 K instead of the original 100K than it is a problem?
Please comment. Thanks
 
I have gone through latest AC21 and I did not understand, could you please answer the following question:

Can a pharmacist move to his employer’s another store, which is 80 miles away from the present store where LC applied, after I-140 approved and 180 days of I-485 pending?

1. If yes what would happen to the labor that have applied?
2. Do we have apply another labor from the new location?
3. What would happen to PD?
4. Do we have start GC process again after moving to another location?
5. Because GC is future requirement and GC-LC applied from old store, do I
have to come back to old location after GC is approved?
 
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