PorkChop or some one Advise Please - Urgent

M

myimmi03

Registered Users (C)
Hi,
Here is my situtaion.

I worked at client C through company Y. Compay Y started my GC. Later I needed to take up permanent postion at Client C with H1 transfer. My switch happend at the time of my labor it self. STill my previous company Y is continuing my GC and it is in I-485 stage and laready 1 year passed after 485. I am still working for same client on H1. My questoins are

1. Is this ok or it has any impact on my GC process with Y?
2. Now I need to apply for my H1 extension with Client C, is there going to be any problkem with INS?
3. Can I continue with Client C until my Gc approved then I can switch to Y rt?

I appreciate your comments.

Thank you,
GCWaiter
 
If you have joined with your client 180 days after your I-485 RD, then all you need to is to wait until you get either approval or RFE for employment. If it is for your employment then you can answer the RFE that your client is the propspective employer after approval.

If you have joined with your client before 180 days completion then you need to produce the employment letter from your other employer who sponsored your GC.
 
hi raja,

thanks for reply. Thing is I joined with client company way head of I-485 filing infact after labor filing. My previous employer said he will continue GC, so i am continuing GC with them eventhough I am with client on client H1.

So i am wondering is my previous employer Gc process is ok rt? and I am not in trouble with GC because I joined with client well in advance rt? FYI... My previous employer will give employment letter if rfe comes.

Thanks,
 
Technically speaking, the I-485 approval is based on the availability of a permanent position prospectively. So long as Company Y is willing to make available, with prospective effect, the position for which an I-140 has been approved by the INS, you can adjust status based on your I-485 filed through Company Y. However, this means that you will have to quit Client C and take up the proferred position once the approval comes through. I infer from the fact that Company Y is willing to provide a RFE response to INS confirming your employment that they are willing to employ you in that position.
 
myimmi03

you did not mention if your i140 was approved or not, but since yours seems to be an old enough case, i am assuming that it was not an i140/i485 concurrent filing case, and that your i485 was filed after company Y's i140 was approved.

as the law stands, you don't ever need to have worked for a company in order to be a beneficiary of an immigrant worker petition (i140) filed by them (since it is for "a job in the future"). and you can file and an adjustment of status application (i485) on the basis of their approved i140 without joining them, the implication and expectation being that you would join them on a permanent basis once your i485 was approved. previously, this could be only outcome of your adjustment of status under law.

now, after the enactment of the AC-21 law, things have changed in one area. invoking AC-21 portability, you can switch employers, and your new employer "inherits" your approved i140 from the original sponsor, and becomes your new sponsor, inasmuch as the "portability" applies to i140, not i485. and this portability benefit becomes available once your i485 has remained pending for over 180 days, which, in your case, it has.

note that the option to change of employers under AC-21 is available only while your AOS is pending, since what you are doing is changing sponsors; once your AOS is approved, you *must* take up permanent employment with whoever was your sponsor at the moment when your AOS was approved. this is explained by fact that AC-21 portability applies to an approved i140; when your green card is approved, your i140 "goes out of scope", including any of its derivative benefits.

so when you get a employment RFE, you can at that time simply give an updated employment letter from your new employer, and invoke AC-21 portability provisions in your cover letter, and you should be ok.

another question that sometimes arises is, what happens if you get no RFE (which is rare)? this is an AC-21 gray area. the AC-21 law does not specifically require an applicant to notify INS/BCIS of change of employer; it merely says the applicant should, which is not the same as must. so that is often a judgement call for your attorney. s/he might consider it well-advised to send in a change of employer notification without waiting for an RFE. however, if you are under NSC jurisdiction, you are almost certain to get an employment verification RFE, so this point is moot. in case things get drastically different, i.e., NCS overcomes its penchant for issuing wholesale RFEs, you can take up the question of voluntary notification with your attorney; for now, you can just sit tight.

good luck!
 
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Interesting.. One continuously learns new stuff on these forums. From Pork's comments, it apears that the firm that sponsors you for employment-based permanent residency does not ever have to be your employer as long as the INS takes more than six months to adjudicate the I-485 petition (a slam dunk, these days), and the employing organization will provide a letter confirming employment in case of an RFE.

I guess this gives hope to all those folks that are employed under H-1B by organizations that are reluctant to apply for a green card as these folks can now have another willing surrogate organization step into this role. Also, this provides an avenue to cherry pick areas to file LCs (again through willing surrogate organizations) to overcome/circumvent large differences in processing times and labor market conditions, irrespective of where the actual permanent position is going to be.

What an unholy mess;) ;)
 
Sankrityayan

you got it, dude. since the INS/BCIS, in their infinite wisdom, have chosen not to enlighten us with their exact interpretations of the AC-21 law, they have left an open playing field. admittedly, what was presented above is a liberal interpretation of the AC-21 portability law, and there is nothing preventing a stickler of an adjudicating officer from insisting that you must have at least put in a cameo appearance at your original sponsor's... but there is no provision of that in AC-21, as far as i know. so, one could conceivably make the AC-21 law work to one's advantage in various ways, until BCIS puts a stop to it.

most of our understanding of AC-21 springs from the commentries by attorneys sheela murthy and carl shusterman on the subject. in particular, carl shusterman was the first to point out some of these implications of AC-21; you can find a transcript of a landmark chat session by shusterman where he first presented his conclusions at this website: The 180-day Portability Rule - Clearing Up Misconceptions
 
Thanks, Pork Chop; I guess it would have been a lot simpler if Congress just said that I-485 will automatically be considered approved if a decision is not forthcoming from the INS in 180 days. AC-21 should perhaps be renamed "The Immigration Lawyers Full-Employment Act".:D :D
 
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