New AC21 updated memo
- Thread starter PrinceofJungle
- Start date
willgetthere2
Registered Users (C)
POJ, you contribut so many useful information here, thank you!
The memo states that a substantial discrepancy between the previous and new employment is not a reason for denial but may be taken into consideartion when the similar or sme position is questioned. Now, what is the definition of substantial? If the process has been pending for a long time 4-5 years and you want to move into a new companay the pay difference could be substantially different if your pay hasn't changed for a long time. Any comments??
Here's a quote from the memo:
"Question 5. Should service centers or district officers use a difference in the wage offered on the approved labor certification and initial I-140, and the new employment as basis for denial in adjustment portability cases?
Answer: No. As noted above the relevant inquiry is if the new position is the same or similar occupational classification to the alien’s I-140 employment. A difference in the wage offered on the approved labor certification, initial I-140 and the new employment cannot be used as a basis of a denial. However, a substantial discrepancy between the previous and the new wage may be taken into consideration as a factor in determining if the new employment is “same or similar.”
Here's a quote from the memo:
"Question 5. Should service centers or district officers use a difference in the wage offered on the approved labor certification and initial I-140, and the new employment as basis for denial in adjustment portability cases?
Answer: No. As noted above the relevant inquiry is if the new position is the same or similar occupational classification to the alien’s I-140 employment. A difference in the wage offered on the approved labor certification, initial I-140 and the new employment cannot be used as a basis of a denial. However, a substantial discrepancy between the previous and the new wage may be taken into consideration as a factor in determining if the new employment is “same or similar.”
Good point !!
GA_TX,
You make a good point. I guess it all depends on the officer. If he/she doesn't like how much more money you are making they will reject you. They may even compare what they are making and feel that a damn temporary alien is making so much money. Can't happen.
On a more serious note there really is no way of telling how they will deal with this. A lot of the words in their rules are so vague that its impossible to tell what they mean. I think this is purposely done so that they can get away with doing whatever they please.
saras76
GA_TX,
You make a good point. I guess it all depends on the officer. If he/she doesn't like how much more money you are making they will reject you. They may even compare what they are making and feel that a damn temporary alien is making so much money. Can't happen.
On a more serious note there really is no way of telling how they will deal with this. A lot of the words in their rules are so vague that its impossible to tell what they mean. I think this is purposely done so that they can get away with doing whatever they please.
saras76
PrinceofJungle
New Member
Dear saras76, willgetthere2 and all, u most welcome.
One of my friend from VSC sent an email with attached PDF, and I searched that is also posted there. I did nothing just shared the link
.
He also has concerns that on concurrent filing and 140 is not approved but 180 days gone, can he take AC21 option. its good relief, sicne its new so I believe it would take some time.
Seems USCIS is offering more tolrance policy. and I am glad that it would may benifit to needy ppl who have concerns on it.
Thanks again to you all, that you are still bearing me
Just keep remember in prays
POJ
One of my friend from VSC sent an email with attached PDF, and I searched that is also posted there. I did nothing just shared the link
.He also has concerns that on concurrent filing and 140 is not approved but 180 days gone, can he take AC21 option. its good relief, sicne its new so I believe it would take some time.
Seems USCIS is offering more tolrance policy. and I am glad that it would may benifit to needy ppl who have concerns on it.
Thanks again to you all, that you are still bearing me
Just keep remember in prays
POJ
Last edited by a moderator:
howdy_howdy
Volunteer Moderator
One more good thing is that, even if employers revoke I140 after 180+
days of filing of I485, the AC21 portability is still valid.
Text from the document:
Q: When is an I-140 no longer valid for porting purposes?
A: An I-140 is no longer valid for porting purposes when:
a. an I-140 is withdrawn before the alien's I-485 has been pending
180 days, or
b. an I-140 is denied or revoked at any time except when it is revoked
based on a withdrawl that was submitted after an I-485 has been pending
for 180 days.
There was a posting in this form a couple of months ago that USCIS had
sent a letter a to an employer that tried to withdraw an approved
I-140 when one of its employees used AC21; the letter said
that USCIS would not revoke the I-140 petition.
That must have been a sporadic case I thought back then, now seems
like its official.
//
days of filing of I485, the AC21 portability is still valid.
Text from the document:
Q: When is an I-140 no longer valid for porting purposes?
A: An I-140 is no longer valid for porting purposes when:
a. an I-140 is withdrawn before the alien's I-485 has been pending
180 days, or
b. an I-140 is denied or revoked at any time except when it is revoked
based on a withdrawl that was submitted after an I-485 has been pending
for 180 days.
There was a posting in this form a couple of months ago that USCIS had
sent a letter a to an employer that tried to withdraw an approved
I-140 when one of its employees used AC21; the letter said
that USCIS would not revoke the I-140 petition.
That must have been a sporadic case I thought back then, now seems
like its official.
//
My take on salary increase... Let me know what you guys think..
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If you filed your labor with salary say 'X' than keeping inflation in mind, if your salary increases by (3-5)% per annum adjudged from the PD, I think that shouldn't be a cause for alarm (substantial increase)
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If you filed your labor with salary say 'X' than keeping inflation in mind, if your salary increases by (3-5)% per annum adjudged from the PD, I think that shouldn't be a cause for alarm (substantial increase)
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Question 8. Can an alien port to self-employment under INA § 204(j)? Answer: Yes, as long as the requirements are met. First, the key is whether the employment is in a "same or similar" occupational classification as the job for which the original I-140 petition was filed. Second, it may be appropriate to
confirm that the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues. Third, as with any portability case, USCIS will focus on whether the I-140 petition represented the truly intended employment at the time of the filing of both the I-140 and the I-485. This means that, as of the time of the filing of the I-140 and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.
confirm that the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues. Third, as with any portability case, USCIS will focus on whether the I-140 petition represented the truly intended employment at the time of the filing of both the I-140 and the I-485. This means that, as of the time of the filing of the I-140 and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.