Please Respond Unitednations To This

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prabhudeva

Registered Users (C)
Hi UN,

Impressed by your knowledge, can you help me please...I am having to use AC21 after 180 days of 140-485 concurrent filing but without 140 approval...

The new company is a very small consulting firm with 15-20 employees but the offer is 20K more than my current salary...

Can they handle any potential 140 RFEs and is there some higlighting points I should look for in the new firm being that its such a small company...

Will appreciate ur response,
Prabhu
 
im sorry

to say that, you can't use AC21 untill 140 is approved AND 180 days after 485 filing. If 140 is not approved your current employer who has the approved labor can use that labor to file for anybody else, thus the current 140 filing would become void. Or he can simply withdraw the 140 filing and he can use the labor whenever he wants for whomever he wants.
 
But what if these two situations don't happen?

will_be_there said:
to say that, you can't use AC21 untill 140 is approved AND 180 days after 485 filing. If 140 is not approved your current employer who has the approved labor can use that labor to file for anybody else, thus the current 140 filing would become void. Or he can simply withdraw the 140 filing and he can use the labor whenever he wants for whomever he wants.
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unitednations,

Actually, my big issue is 'Ability to Pay' not educational stuff.

My first I-140 & Appeal was denied in 03/2004 as the company's financials are hopelessly bad with losses and liabilities in Y01 &02. However, since later in 2003, company recovered from losses and making profits ~50k and keeping my Y04 pay-roll up-to-date with 90K(LC salry)

So, lawyer re-filed I-140/485 with Y03 tax retuns/financials and pay-stubs in 06/2004 hoping that USCIS may be kind this time.

Thinking that there is a strong possibility of RFE 'expecting in 01/2005' on prior company financials with latest W2s. So, my plan is to use AC21 keeping my Y04 W2= LC salary and switching to new employer in early Y05 hoping that USCIS won't deny my case out-right with prior history of company losses.

So, basically, my only hope is AC21 and counting on it as you replied in your thread before ....

apprecited your insight...
----------
LC AD: 04/2002
First I-140-> ND:06/2002 RFE:02/03 Denial 04/02 appealed: 08/03 Denial: 03/2004
All RFEs about 'Ability to Pay /Inadequate financials'
Second I-140: RD:06/04/2004 with Y03 financials and latest pay-stubs
I-485: RD: 07/04
EAD: AD: 08/04
--------------------------------------------


unitednations said:
I agree with your new attorney. You can definitely expect an RFE. Problem is nothing has changed from the year that you needed to meet ability to pay. I don't see what you have to lose but everything to gain. 140 could be approved from old employer or in 140 RFE response you could send documents and at the same time invoke ac21. I don't see much of a downside for you to change employers after 485 pending more than 180 days.

Just keep in mind that you would need to stretch out response to RFE to make sure 485 has been outstanding for more than 180 days. Therefore, it would seem that as long as you get RFE after 90 days of 485 outstanding and then take full 90 days to respond you would cross 180 days and could use portability. Thing to watch out for is if in the remote chance uscis sends denial notice right away instead of sending RFE.

Another member Naanshi is in similar situation as yours although he didn't use same labor/company. In his response to RFE he sent in financial documents and at the same time invoked ac21. This was last month and he hasn't heard anything.

Key issue in all of this is that the 140 at the time of filing has to be "bona fide"; which in my mind says that it needs to be approvable. However, one could make the argument that ability to pay needs to be met by the ultimate employer and not a combination of the two employers.

I imagine you have been following the other boards and see how much discussion this is taking.
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hi..i am in a similar situation.. i went ahead changed jobs after 180 days of 485 ND and without 140 being approved. its a risk i had to take. As now i am still not sure how my case will proceed..but i had my h1 transfer for the new company approved and then got my 1st FP notice as well..all while the 140 still unapproved.. now the big question is how it will go from here..my old company will not withdraw/revoke 140 so if any rfe they have to respond...
 
rock1,
would plz post some dates on your case?
like when was AC21 filed with new company? and orig. I-140 RD? Have your new/old lawyer got any RFE ?
 
lohith,

My 140/485 ND is oct st 1 2003. I changed jobs in july 2004 . I have NOT filed for AC-21 has my 140 is NOT yet approved. There has been no rfe received as of date. My 140 and 485 LUD changed twice last month and i got FP notice on sept 10th..but my FP date is OCT 27th. So i decided not to send any communication to CIS regarding job change and wait for an rfe..

thx
 
lohit, just to add i applied for my second EAD renewal of changing jobs thru new company's attorney's and it was approved in one month...
 
Hi UN,

Thanks for your response.

I do not know what they will do, I have never got a clear answer whenever I tried to ask...But,if they don't do anything and a query comes six months down the line, Can my new employer answer to it?

Also, are you saying that as long as I am getting paid well enough the small size of the new employer does not matter?

Thirdly, to your knowledge, does it matter later on that the case filing company(I mean this current employer) laid me off or I resigned...My joining time for new job is close and they are neither laying me off nor paying me. What do you think would be my best action to end this smoothly to avoid future complications?

Appreciate your sharing ur knowledge,
Prabhu :)


unitednations said:
The ac21 issue with regards to 140 approval.

I think everyone knows the pitfalls, uscis position, INA law and the gray areas.

Will your old employer leave 140 alone or will they withdraw it. If they leave it alone then I would say change jobs. If they are going to withdraw it and it hasn't been approved then you could get stuck in a battle with uscis.

Since you are making more then the proferred wage with the new company you should be fine. I haven't been able to get the answer as to when the new company has to meet ability to pay, that is from priority date or when ac21 is used.

If you are a risk taker then you could send ac21 letter to uscis while you are still employed with the same company and see what uscis does. If they have a problem then stay with same company. If they don't object then switch to new company. I'm assuming that the new company has an open job offer and that they are willing to wait.
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lohith said:
***************
adilanis,
First time I heard of someone got 140 approved after using AC21. My company is closing down and the lawyer stated I'm not eligible to use AC21 because 140 is not approved. Can you give us more details about your case? Those asked by other people are good enough.
Thanks!
***************
Check out thread for first approval news...

http://www.ImmigrationPortal.com/showthread.php?t=142315&goto=newpost
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The above quote was what I wrote to adilanis.....
So far adilanis is the first one I saw with 140 approval after AC 21....
Any one from CSC has this experience.
 
if the old employer get I140 approval before the new employer file AC21, is there still a point to file AC21 in the cases of concurrent filing? I think both I140 and 485 will be approved at the same time, which means you've gotten the green card. what's the point to complicate things to file AC21?
 
USCIS online can tell you if you got RFE, but you can't know the details of the RFE. I am not sure if FOIA is going to help in this case.
 
Thanks that gives me some clarity...

unitednations said:
Company size doesn't matter. There are many people on these boards who work for small companies, ie., less than 10 employees and they were approved.

If you don't proactively inform uscis of the use of ac21 then in all probability the old employer is the one who will receive RFE along with your lawyer. It wouldn't be ideal but you could then notify uscis of the use of ac21 and new employer information. As lohith had copied one of my old posts before, I know of one person naanshi who supplied old company financial information and then use of ac21 for new employer all within the same RFE. He hasn't gotten word one way or the other.

With regards to the third scenario; I would go ahead and join new company. Since they aren't paying you, you gotta live right.

Do you have confidence in your lawyer that if you didn't notify uscis of use of ac21 and they sent RFE for 140 to old employer that your lawyer would let you know. If you have confidence in the lawyer then you could invoke ac21 at that point.

If you don't have confidence that your lawyer will inform you then change jobs and proactively inform uscis of job change.

There isn't really a clear cut answer whether you should inform before or after RFE. If you haven't notified uscis of ac21 then once you get 140 approval from old employer then you may want to notify uscis of use of ac21 at that point.
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