Originally posted by goodsaint
The Courts read the statutes and try to see if the issue in question is explicitly addressed or not. If yes the statute is applied otherwise it is not applied. As per my reading of AC21, it is not ambiguous per se to the issues it addresses. The issue is that it does not address every issue surrounding 140/485 process. What is missing is the final regulation (official interpretation of AC21). It does not appear to be forthcoming from INS anytime soon (or ever).
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Generally, The Courts go by preponderance of the evidence and arguments.
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The statute is interpreted by the executive agency as below(Memo).
"'.............Therefore,it is possible for an alien to qualify for provisions of 106(c) of AC21 even if he or she has NEVER been employed by the PRIOR petioning employer or the SUBSEQUENT
employer under section 204(j) of the act. '.'"
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Please review the theoretically posssible sequence
1)Even never been employed by the sponsoring employer,AC21
still can matter.
2)Using AC21 can also imply an EAD also.
3)Further,Pending AOS --An EAD is allowed.
a)So having/using an EAD for a Pending AOS, sponsored by an employer, with whom the employee is never worked/working( but work after AOS- scenario.)
b)An employee working with sponsoring employer but
was out before AOS or I140 approval scenario).
As per statute interpretition:
case a)
The employer can have the intent( thro' a letter) still he will employ the beneficiary after AOS.
case b)
The employer can show the intent(Thro' a letter) to
have employed after AOS AGAIN(Hence no revocal of I140) and explain present gap is due to some adminstartive measures.
(Employer can still say, as per the provisons, he can employ him
only after AOS again and he is not bound by the rule and he can give a break in employment well before AOS and hence his decision,(for example) and can be the circumustantial evidence)
Still case a) and b) are not still meeting the statute(if not by common law)?and to be Adjusted aswell(theoretically as of now
as final regulations are not framed)?
(since it is mentioned case will be read matching the statute lines)
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Not a legal advise.Only layman's opinioin.