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Text of new AC21 memo part 1(Section A &B)

Discussion in 'Frequently Asked Questions – I-485 FAQ' started by jaxen, Aug 13, 2003.

  1. jaxen

    jaxen Volunteer Moderator

    U.S. Department of Homeland Security
    Bureau of Citizenship and Immigration Services
    HQBCIS 70/6.2.8 - P
    425 I Street NW
    Washington, DC 20536
    August 4, 2003

    MEMORANDUM FOR SERVICE CENTER DIRECTORS, BCIS
    REGIONAL DIRECTORS, BCIS
    FROM: William R. Yates /s/ Janis Sposato
    Acting Associate Director for Operations
    Bureau of Citizenship and Immigration Services
    Department of Homeland Security

    SUBJECT: Continuing Validity of Form I-140 Petition in accordance with Section 106(c) of
    the American Competitiveness in the Twenty-First Century Act of 2000 (AC21)
    (AD03-16)

    The purpose of this memorandum is to provide field offices with guidance on processing
    Form I-485, Application to Register Permanent Residence or Adjust Status, when the beneficiary
    of an approved Form I-140, Petition for Immigrant Worker, is eligible to change employers
    under §106(c) of AC21.

    On January 29, 2001, the legacy Immigration and Naturalization Service’s (Service)
    Office of Field Operations issued a memorandum entitled “Interim Guidance for Processing
    H-1B Applications for Admission as Affected by the American Competitiveness in the
    Twenty-First Century Act of 2002, Public Law 106-313.” On June 19, 2001, the Office of
    Programs issued a follow-up memorandum entitled “Initial Guidance for Processing H-1B
    Petitions as Affected by the American Competitiveness in the Twenty-First Century Act (Public
    Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106-396).” On
    February 28, 2003, Immigration Services Division issued a memorandum entitled “Procedures
    for concurrently filed family-based or employment-based Form I-485 when the underlying visa
    petition is denied.” These memoranda remain in effect. On July 31, 2002, the Service published
    an interim rule allowing, in certain circumstances, the concurrent filing of Form I-140 and Form
    I-485. Previous Service regulations required an alien worker to first obtain approval of the
    underlying Form I-140 before applying for permanent resident status on the Form I-485.
    Institution of the concurrent filing process, and other issues relating to revocation of approval of
    Form I-140 petitions, have resulted in questions on how to process adjustment applications when
    the alien beneficiary claims eligibility benefits under §106(c) of AC21 due to a change in his or
    her employment.


    A. Approved Form I-140 Visa Petitions and Form I-485 Applications
    The AC21 §106(c) states:
    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.
    If the Form I-140 (“immigrant petition”) has been approved and the Form I-485
    (“adjustment application”) has been filed and remained unadjudicated for 180 days or more (as
    measured from the Form I-485 receipt date), the approved Form I-140 will remain valid even if
    the alien changes jobs or employers as long as the new offer of employment is in the same or
    similar occupation.1 If the Form I-485 has been pending for less than 180 days, then the
    approved Form I-140 shall not remain valid with respect to a new offer of employment.


    B. Provisions in Cases of Revocation of the Approved Form I-140
    1AC21 also provides that any underlying labor certification also remains valid if the
    conditions of §106(c) are satisfied.
    As discussed above, if an alien is the beneficiary of an approved Form I-140 and is also
    the beneficiary of a Form I-485 that has been pending 180 days or longer, then the approved
    Form I-140 remains valid with respect to a new offer of employment under the flexibility
    provisions of §106(c) of AC21.
    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. If the applicant responds to the Notice of Intent to Deny, but has
    not established that the new offer of employment is in the same or similar occupation, the
    adjudicating officer may immediately deny the Form I-485. If the alien does not respond or fails
    to timely respond to the Notice of Intent to Deny, the adjudicating officer may immediately deny
    the Form I-485.
    If approval of the Form I-140 is revoked or the Form I-140 is withdrawn before the
    alien’s Form I-485 has been pending 180 days, the approved Form I-140 is no longer valid with
    respect to a new offer of employment and the Form I-485 may be denied. If at any time the
    BCIS revokes approval of the Form I-140 based on fraud, the alien will not be eligible for the
    job flexibility provisions of §106(c) of AC21 and the adjudicating officer may, in his or her
    discretion, deny the attached Form I-485 immediately. In all cases an offer of employment must
    have been bona fide, and the employer must have had the intent, at the time the Form I-140 was
    approved, to employ the beneficiary upon adjustment. It should be noted that there is no
    requirement in statute or regulations that a beneficiary of a Form I-140 actually be in the
    underlying employment until permanent residence is authorized. Therefore, it is possible for an
    alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employed
    by the prior petitioning employer or the subsequent employer under section 204(j) of the Act.
    Questions regarding this memorandum may be directed via e-mail through appropriate
    channels to Joe Holliday at Service Center Operations or to Mari Johnson in Program and
    Regulation Development.
     
  2. jaxen

    jaxen Volunteer Moderator

    Rest of the Memo- 20.2 validity

    Accordingly, the Adjudicator’s Field Manual (AFM) is revised as follows:
    Ë 1. Chapter 20.2 of the AFM is revised by adding a new paragraph (c) to read as follows:
    20.2 Petition Validity.
    (c) Validity after Revocation or Withdrawal. Pursuant to the provisions of section 106(c)
    of the American Competitiveness in the Twenty-First Century Act (AC21), Public Law
    106-313, the approval of a Form I-140 employment-based (EB) immigrant petition shall
    remain valid when an alien changes jobs, if:
    $ 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
    $ The new job is in the same or similar occupational classification as the job for
    which the certification or approval was initially made.
    If the Form I-140 has been approved and the Form I-485 has been filed and
    remained unadjudicated for 180 days or more (as measured from the form I-485 receipt
    date), the approved Form I-140 will remain valid even if the alien changes jobs or
    employers as long as the new offer of employment is in the same or similar occupation.
    If the Form I-485 has been pending for less than 180 days, then the approved Form I-
    140 shall not remain valid with respect to a new offer of employment.
    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. If the applicant responds to the Notice of Intent to Deny, but has not
    established that the new offer of employment is in the same or similar occupation, the
    adjudicating officer may immediately deny the Form I-485. If the alien does not respond
    or fails to timely respond to the Notice of Intent to Deny, the adjudicating officer may
    immediately deny the Form I-485.

    If approval of the Form I-140 is revoked or the Form I-140 is withdrawn before
    the alien’s Form I-485 has been pending 180 days, the approved Form I-140 is no
    longer valid with respect to a new offer of employment and the Form I-485 may be
    denied. If at any time the BCIS revokes approval of the Form I-140 based on fraud, the
    alien will not be eligible for the job flexibility provisions of §106(c) of AC21 and the
    adjudicating officer may, in his or her discretion, deny the attached Form I-485
    immediately. In all cases an offer of employment must have been bona fide, and the
    employer must have had the intent, at the time the Form I-140 was approved, to employ
    the beneficiary upon adjustment. It should be noted that there is no requirement in
    statute or regulations that a beneficiary of a Form I-140 actually be in the underlying
    employment until permanent residence is authorized. Therefore, it is possible for an
    alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been
    employed by the prior petitioning employer or the subsequent employer under section
    204(j) of the Act.
     
  3. jaxen

    jaxen Volunteer Moderator

    bump down

    bump down
     
  4. srbose

    srbose Registered Users (C)

    To Jaxen, Reply Solicted.

    If approval of the Form I-140 is revoked or the Form I-140 is withdrawn before the alien’s Form I-485 has been pending 180 days, the approved Form I-140 is no longer valid with respect to a new offer of employment and the Form I-485 may be denied.

    Sir My Question is?

    WHAT IS THE MEANING OF MAY BE DENIED? IS IT MEANING USCIS MAY APPROVE IF FORM I-140 IS WITHDRAWN BEFORE THE ALIEN’S FORM I-485 HAS BEEN PENDING 180 DAYS.
     
  5. LiveAndLetLive

    LiveAndLetLive Registered Users (C)

    Can you someone explain this in plain english?

    Does this mean that for concurrent filers or otherwise if the three conditions given below are satisfied, you are free to change jobs?

    • Your 140 is approved
    • 485 is pending for more than 180 days
    • Your new job has similar job description

    Please advise
     
  6. kumarss

    kumarss Registered Users (C)

    Has any gentleman replied this Q? : :confused:

     
  7. fast_gc_seeker

    fast_gc_seeker Registered Users (C)

    from my understanding u r safe if

    Your 140 is approved
    485 is pending for more than 180 days
    Your new job has similar job description
     
  8. Ziri

    Ziri Registered Users (C)

    jaxen

    That was too much reading for me but what I picked is that you can use AC21 if your I-140 is approved and I-485 is past 180 days. My question is when I use AC21 do my new employer still have to prove ability to pay me. I want to use AC21 but with a new company just starting this month and has never filled any taxes.
     
  9. kmunna

    kmunna Registered Users (C)

    yes, USCIS can ask before approving 485 that new employer should prove ability to pay. although i didn't see in writing anywhere.
     
  10. mtlcanadian

    mtlcanadian Registered Users (C)

  11. mtlcanadian

    mtlcanadian Registered Users (C)

    "MAY"....

    If approval of the Form I-140 is revoked or the Form I-140 is withdrawn before the
    alien’s Form I-485 has been pending 180 days, the approved Form I-140 is no longer valid with
    respect to a new offer of employment and the Form I-485 may be denied.

    Notice the "may be denied". Does it leave the possibility that one can somehow salvage something?
     
  12. plztoday

    plztoday Registered Users (C)

    Got an Rfe on I485-copies of all I 94 are required--the problem is , I do not have the first and the second one. I was a student at that time and in 1999 they used to use the same I94 number so i have the number.I also have the I120 form issued to the students and can show that was never out of status.

    My question is if i submit the I94 i have and not all of them as asked in the RFE will they reject my application?and will loose all my hope and dreams... :(
     
  13. m_img

    m_img Registered Users (C)

    Sorry, I can't give you any insight into this. Only thing is that you can argue that you're suppose to return all I-94s when you leave country. And there is room for entering one I-94 which is your last/current I-94.

    I don't they could deny based on this. If they do, you can appeal. Is it documented somewhere that copies of all I-94s are required?

    I really don't understand why would they want all old I-94s. Is this normal? Shouldn't USCIS have the records of all previous I-94s issued?

    How is USCIS going to know if you have submitted all previous I-94s?
     
  14. manwithnoname

    manwithnoname Registered Users (C)

    Usually all I-94s since I-485 filing may be necessary. Once an individual departs the U.S. only the latest I-94 need to be submitted. Please note, while living in the U.S. a new I-94 (obtained as change / extension of status) overrides the old one.
     

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