Rules around Portability

[ImmigrationQs]

Hi,
I am currently evaluating an opportunity to move from my current job - this is my current status: my I -140 was approved 18 months ago, i have had 3 EAD cards so far, am waiting for i 485 to be approved. Retrogression rules has delayed my process.

I am not familiar with the process at all, but my new employer sent me some documentation which had a waiver to sign- it mentioned there is risk involved in moving etc etc.
My questions are:

1. Is this really true? what are risks involved?
2. DOes my new employer have to apply for AC21? Can INS make a determination on whether or not I am eligible for benefits under AC21 before I commence employment ?
3. If so, how long can they take to make this determination?
4. If not, at what point in the process will they make that determination?
5. If at the end of the process, INS rejects my eligibility for portability, is there an appeals process?
6. Can a rejection of portability potentially jeapordize my entire AOS application?

I know i have a lot of questions on this topic, can someone who has gone through this guide me please. Thank you!
Please help!!
- Immigration Q's

 

[TheRealCanadian]

Is this really true? what are risks involved?

The only significant risk is that USCIS will find that the new job is not "same or similar", by virtue of the duties or pay. They have been pretty liberal in the past, but that's only through implementation memoranda. (One area where there has been a formal BIA judgment is in location; the new job does not need to be in the same geographic area as the LC.)

That's a pretty low risk, unless you go from being a DBA to a bricklayer. If your new job is in the same field, you're OK.

DOes my new employer have to apply for AC21?

No. Your new employer is not a party to your action and has no standing with USCIS. All your employer needs to do is provide you with evidence of your new job; typically an offer or employment verification letter. You submit them to USCIS if they ask.

Can INS make a determination on whether or not I am eligible for benefits under AC21 before I commence employment?

No. They ajudicate specific cases.

If not, at what point in the process will they make that determination?

When they ajudicate your I-485.

If at the end of the process, INS rejects my eligibility for portability, is there an appeals process?

Yes, you can appeal. The BIA case I refer to above is one such example; USCIS claimed that portability didn't apply to a job with the same employer but a different location. The alien appealed, and ultimately won the case.

Can a rejection of portability potentially jeapordize my entire AOS application?

If they reject portability, your I-485 is denied since you don't have a qualifying job, unless you are eligible for approval some other way (like a pending I-130, I-140 or I-360 with someone else sponsoring you). However, if your new job is pretty similar to the old one, I wouldn't be overly worried about rejection. People invoke AC21 all the time with success; I did so at my interview and the officer didn't even raise an eyebrow.

 

[pinkie123]

Hi All
My I140 is approved in Jan 2006 and my I485 is pending since 10 months.
My labour was filed as a Software Development engineer.
I fear a layoff from my present company. I have another offer in a reputed company as a Development manager.
Can I file AC21 and change.
The job duties remain the same.. I mean.. initially I would code in C language and now I will manage people coding in C language.
Does that fit into similar/same job category?
Anyone pls help!!!!!!!!!!

 

[vicky007]

If they reject portability, your I-485 is denied since you don't have a qualifying job, unless you are eligible for approval some other way (like a pending I-130, I-140 or I-360 with someone else sponsoring you). However, if your new job is pretty similar to the old one, I wouldn't be overly worried about rejection. People invoke AC21 all the time with success; I did so at my interview and the officer didn't even raise an eyebrow.

Hi RealCanadian,

Would you advise informing the USCIS regarding the Change of Employer(AC21) as soon as one changes job or wait for an RFE or EVL demand from USCIS and then formally inform the USCIS about change of employer(AC21).

 

[ImmigrationQs]

Thanks RealCanadian for all your help and tips. One more question- is there a website or someplace where I can check the risk associated with my case when it comes to AOS portability- just to compare the rule of "similar jobs"
Thank you!!!!!!!!!!!!!