Question on AC21 portability : URGENT :

M

maverick1976

Registered Users (C)
Guys,

My RD is Sept 25 , 2002 and I am on my second EAD at the moment. I have an exciting job offer and have some questions on the AC1 portablilty rule.

Obviously its been 180 days since I filed for My I-485 , but I hear that my current company which holds my labor and I-140 has to release my labor to the new company before I start working for them. Is this a necessary clause ?

I was under the impression that I was free to work for any company as long as the job description and the salary were the same. This new clause has taken me by surprise and will affect my decision.

Your thoughts / suggestions / feedback on this ?

I'd really appreciate if you guys answer this quickly .. need to make up mind by end of day today.
 
As far as I know, you can change ur job after 180 days of 485 applied. ur current company can not hold or stop 485 processing or affect anyway to approval. You can check with ur lawyer to confirm this.

Just my thoughts with my experience, always make sure with ur lawer before making any decesions.
 
Your original Labor cetification papers must have been included when you filed I-140 papers. So your current company should not have your Labor papers with them. Secondly, you are free to change jobs in similar area after 180 days of your I-140 approval under AC21 portability rules.

After 180 days of your I-140 approval, your company can not revoke your I-140. You do not need to transfer Labor to join any new company and for that you should use your EAD.
 
Thanks Dear

Thats what I thought too. I anyways have a copy of my approved I-140.

One more thing ,
Does the AC-21 automatically kick in after I change jobs or do I have to write to the INS / BCIS about it ?
For the previous posts I believe there is no need for any paper work. Only , if there is an RFE , I need to provide proof of employment and recent pay stubs. Is this true ?
 
There is a debate as to when you should inform UCIS about invoking the AC21 law...some people wait till RFE and some inform right away. Your new job should be similar to the one as stated in your approved labor and you should be getting at least the same wage as descibed in your labor certification. Make sure that you have a valid EAD when you switch job as you can not use your previous H1 for new job.

You should also discuss this with your lawyer.
 
Yes Dear is correct…many times BCIS do not issue any RFE…but also in murthy.com there was similar question :

Is it still recommended to send a letter for AC21 or wait for the RFE?

Attorney Murthy : Based on the August 4, 2003 Memo just released today, on August 11, 2003, it is best to send out the new employment letter to show the "same or similar" job before getting the Notice of Intent to Deny. The BCIS position seems to be that the person who leaves the sponsoring employer after the I-485 has been pending for over 180 days, is entitled to obtain the I-485 approval, even if the employer revokes or withdraws the underlying I-140 petition after that time. There will no longer be an RFE but a Notice of Intent to Deny the I-485. Accordingly, the safest bet is to submit the documents soon after starting work with the new employer confirming the satisfaction of the "same or similar" employment requirement, to attempt to obtain the I-485 approval

My advice is better speak to your attorney …….
 
maverick1976:

As andy2000 pointed out, BCIS may not issue an RFE. They might actually issue NOID if the I-140 is revoked by the employer and you have not notified them about the job change. It is therefore advisable to notify BCIS of the job change invoking AC21 rather than wait for an RFE.

Check out the actual memo from BCIS regarding this at

http://www.immigration.gov/graphics/lawsregs/handbook/I140_AC21_8403.pdf

A relevant excerpt from the same is reproduced below.

"Accordingly, if the employer withdraws the approved Form I-140 on or after the date that the Form I-485 has been pending 180 days, the approved Form I-140 shall remain valid under the provisions of §106(c) of AC21. It is expected that the alien will have submitted evidence to the office having jurisdiction over the pending Form I-485 that the new offer of employment is in the same or similar occupational classification as the offer of employment for which the petition was filed. Accordingly, if the underlying approved Form I-140 is withdrawn, and the alien has not submitted evidence of a new qualifying offer of employment, the adjudicating officer must issue a Notice of Intent to Deny the pending Form I-485. See 8 CFR 103.2(b)(16)(i). If the evidence of a new qualifying offer of employment submitted in response to the Notice of Intent to Deny is timely filed and it appears that the alien has a new offer of employment in the same or similar occupation, the BCIS may consider the approved Form I-140 to remain valid with respect to the new offer of employment and may continue regular processing of the Form I-485."
 
Thanks Guys ..

Spoke to my attorney , but since my current employer is a client with the same law firm , basically it is my company lawyer but they made me pay for the entire process , he was reluctant to discuss my case in too much detail until I decide to take the AC-21.

At the moment , as I see it , I need a new company which will sponsor my Green Card process and as soon as I join this new company , my attorney should send some letters to the BCIS so that when they get to my case , they don't issue a Notice Of Intent to Deny. (NOID).

Once again thanks for all your help guys ..
 
Re: Thanks Guys ..

Originally posted by maverick1976
Spoke to my attorney , but since my current employer is a client with the same law firm , basically it is my company lawyer but they made me pay for the entire process , he was reluctant to discuss my case in too much detail until I decide to take the AC-21.
Click to expand...

If you were paying for the counsel, why did you not go to a different lawyer? With the one that your company is paying for, there is a clear conflict of interest and I would not be surprised if s/he allowed the information on your job prospecting to permeate to your current employer.

I know that technically you are the applicant in an I-485, but s/he still is engaged and paid for by your employer.
 
Employer's Attorney paid by Employees

Sankrityan,

This is not an isolated case - there are many companies including mine which says that they will process the GC but only if we go thro' their attorney - EVEN IF WE TAKE THE LEGAL COSTS. So in such situations there isnt much of a choice.

But in Maverick's case - my advice to you is,

- First, find another job(provided you are past 180days of 485) which is in the same or similar job description - if possible with the same or higher salary as mentioned in the Labor.

- Secondly, once your job offer is in hand - you can choose an attorney of your choice and once you sign the declaration that you intend to hire him to represent your case, he can directly get your entire file from the earlier company attorney. I think this is a common practice most of the people I know, have done in your situation. I am told that there is no room for refusal unless, you have a legal cost pending with the previous attorney. Once your new attorney requests for your files, they(previous attorney) will immediately hand over all your files.

Not a problem at all in my opinion. Good Luck!

-MrCoolz
 
Re: Employer's Attorney paid by Employees

Originally posted by MrCoolz
Sankrityan,

This is not an isolated case - there are many companies including mine which says that they will process the GC but only if we go thro' their attorney - EVEN IF WE TAKE THE LEGAL COSTS. So in such situations there isnt much of a choice.
Click to expand...

I am aware of such requirements by companies which tend to view the GC process as a profitable chain of bondage. But in this instance, Maverick1976 seems to have voluntarily approached his/her company attorney when s/he could have as easily (and more confidentially) consulted an outside attorney, and hence my observation. More critically, I am pointing out to Maverick1976 that, contrary to what s/he may believe, her/his conversation with her/his company's attorney is not bound to remain confidential as it is unlikely to be protected by attorney-client privilege.
 
Thanks for all your support guys ...

It wasn't a job .. its more like an engagement with a client and I thought I could route it thru another company to keep a larger share of my bill rate. I spoke my attorney , who is also the company attorney and just kept it very general, like I was enquiring about the AC-21 options. The attorney also told me that if I decide to leave my present employer , they would file my AC-21 and thats when I can use my client - attorney priviledge and they won't tell my current employer a thing.

I finally decided to chicken out and route this new offer thru my present employer. I guess its better to be patient and wait for my GC than to rock the boat. I guess I'll use the AC-21 only as my last option. Hopefully this long ordeal will be over pretty soon for all of us. Till then I'll just wait it out and visit this forum as frequently as a I can.
 
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