Originally posted by sunnyfeb19485
Thanks!!
My I-485 was filed sometime in Feb 2002 and I do have a valid I-140 approval.
My dilemma is, would it be considered fraud, as my current employer attorney responded to the RFE about employment. And I join new employer before the approval.
The job role is same.
Thanks,
sunnyfeb19485
Clearly there is no fraud in taking up another job. I guess you mean fradulent intent in as much as you have claimed your current position (if that is the proferred position) as the basis for your AOS, thereby implying an intention to take up the position if your AOS application were to be approved. I do not believe you would be at risk given that AC-21 expressly permits you to accept new employment as long as the job responsibilities are similar. I do not see any basis for INS to question your intent. However, what INS, if miffed, can do to extract retribution, is to question your eligibility to avail of AC-21 by seeking to make a finding that your new job is not similar to the old one. No two jobs are exactly alike and it is not too difficult to find significant, if legally irrelevant, differences if one sets out to prove a point. The trap to look for is the salary differential, because that is biggest reason why people switch jobs and that is also the reason that can be most easily used in a supposed free market system to show that the two jobs are not similar.
An RFE and the related response does not change much of anything. It just confirms that the conditions of employment laid out in the approved immigrant worker petition I-140 continue to exist from your employer's point of view. It does not reaffirm or dilute in any way your own intent to take up the proferred position.
In fact, on this issue, one can reasonably argue that the INS is placing an unreasonable burden by seeking confirmation, via its RFE, of the continued existence of the conditions of employment as approved in the I-140. This is tantamount to asking for an employment offer (and all related terms including salary) to remain open for two, in some cases three, years and everybody, including the courts can easily see how this is an impossible standard to meet. INS is supposed to adjudicate the petition on the basis of the evidence that was presented to it as part of the application package that was initially filed. It is obviously acceptable to ask for missing evidence as long as such evidence is legally necessary for adjudication and is not included with the initial filiing (such as birth certificates, incomplete vaccinations etc.). The agency is not supposed to ask for the application package to be refreshed continuously while it sits on it for years on. That is not the law and in routinely asking for employment confirmations, INS is misapplying the law.
This is the type of question where a good lawyer may be able to help, but unfortunately most of us are saddled with clerks in the garb of attorneys. It is somewhat like having a tax preparer when what you need is a tax counsel!
