question about AC21 rule

A

asimraja

Registered Users (C)
Hi,

My status is as follows:

I-140 and I-485 filed concurrently.
I-140 approved at the end of September, 2003. I-485 filed Nov 2, 2002 and still pending.

My previous understanding is that if I get fired at this moment, I can seek employment because my I-140 is approved and my I-485 was filed more than 6 months ago.

But, today my lawyer said that is changed. So, one has to have atleast 6 months after the approval of I-140 before one can seek a different employer.

Is this true? In my case, am I safe as in being able to search for a job if I get fired today?

Thank you in advance for answering my questions.
 
You are in good shape

That is total BS dude. You can happily change the job. But BCIS recommends filing AC21. Good luck!!!

Cheers,
masti
 
AC21 sits on top of 485, so the date of 140 approval shouldn't matter. As long as your new job is of the same or similar job description and you are making the same or more money.


--
If you haven't done so already, please consider joining us in our fight for speedy 485 approvals. All you need to do is send out a couple of faxes, to your congressman to join our voices in calling for faster processing of 485's. This campaign is already producing results, that are tangible and recorded in some of the other threads on this forum. Please help in helping yourself out of this misery. Support the FAX CAMPAIGN. (The link is available at the bottom of this post in my signature). What do you have to lose?
 
Originally posted by 140_takes_4ever
AC21 sits on top of 485, so the date of 140 approval shouldn't matter. As long as your new job is of the same or similar job description and you are making the same or more money.


I am not sure if you need to 'make same or more money'. AFAIK only the job description should match.

hth
dyno

--
If you haven't done so already, please consider joining us in our fight for speedy 485 approvals. All you need to do is send out a couple of faxes, to your congressman to join our voices in calling for faster processing of 485's. This campaign is already producing results, that are tangible and recorded in some of the other threads on this forum. Please help in helping yourself out of this misery. Support the FAX CAMPAIGN. (The link is available at the bottom of this post in my signature). What do you have to lose?
Click to expand...
 
I am not sure if you need to 'make same or more money'. AFAIK only the job description should match.
Click to expand...
Please post links if you have any proof to refute the statement. What I posted was a very general broad based accepted statement which you will find on most lawyer's websites and on the INS website as well. If you have any concrete information other than "feelings" to dispute the statement, I would be glad to know!
 
Originally posted by 140_takes_4ever
Please post links if you have any proof to refute the statement. What I posted was a very general broad based accepted statement which you will find on most lawyer's websites and on the INS website as well. If you have any concrete information other than "feelings" to dispute the statement, I would be glad to know!
Click to expand...


Sure. No "feelings" here, just "facts". Also what we read in the forums should be used after discretion. I would also be happy if you could follow up your words with facts (not from forums but from authoritative sources). :)

"A petition under subsection (a)(1)(D) [since re-designated section 204(a)(1)(F) of the
Act] for an individual whose application for adjustment of status pursuant to section 245
has been filed and remained unadjudicated for 180 days or more shall remain valid with
respect to a new job if the individual changes jobs or employers if the new job is in the
same or a similar occupational classification as the job for which the petition was filed.

Accordingly, guidance in the June 19, 2001, memorandum provides that the labor
certification or approval of a Form I-140 employment-based (EB) immigrant petition shall
remain valid when an alien changes jobs, if:
(a) A Form I-485, Application to Adjust Status, on the basis of the EB
immigrant petition has been filed and remained unadjudicated for 180
days or more; and
(b) The new job is in the same or similar occupational classification as the job
for which the certification or approval was initially made.
This policy is still in effect and has not changed as a result of implementation of the
concurrent filing process."

The whole document can be read at the USCIS site here.

hth
dyno

 
Last edited by a moderator:
Looks like I stand corrected, after some research here is what I found:

Originally posted on murthy
Under Section 106 of the American Competitiveness in the Twenty-First Century Act (AC21) of 2000, an adjustment application remains valid with respect to a new job if the adjustment application has been filed and remained unadjudicated for 180 days or more. The new job must be in the same or a similar occupational classification as the job for which the application was filed.

The June 2001 INS Memo mentions that the determination of "same or similar job" should be in the same job category as that in the directory of occupational titles (DOT) or the O*NET but the INS has verbally agreed that they may be willing to consider a broader definition in the future. Besides job title and description, the salary with the new employer would also need to satisfy concerns regarding the public charge provisions.
Click to expand...

Originally posted on murthy
Question 8 : If I change jobs, does the new employer have to pay the wage stated on the labor certification?

No. As explained by the INS in the June 2001 Interim Guidance Memo, the new job does not have to be at the same wage level, nor is there any requirement that the new position pay a rate equal to the "prevailing" wage. The only restrictions are that the pay must be sufficient to demonstrate that the person will be self-supporting and not become a "public charge".
Click to expand...

Having said that, I would still go with same or higher salary, just to prevent any misunderstandings or wrong interpretations of the AC21 law by ignorant adjudicating officers.

Nevertheless good post dynobuoy.
 
There are no implementing regulations for AC21 and until there are the exact mechanics of the situation are somewhat unclear. The Guidance Memo that seems so broad was written in June 2001 and that was before the events of 9/11. Lots of things have changed since then. Many attorneys have opinions on this and I have mine but opinions do not matter. Until we have implementing regulations for AC21 nothing is 100% clear. We operate in the absence of certainty here and that's fine, but don't pretend that this is 100% clear. If you get caught on the wrong side of this interpretation when the regulations come out you will have your I-485 denied and will be fighting a difficult battle on appeal. My advice is to be safe if you have a choice in the matter.
 
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