Urgent advise needed about AC21 versus new PERM

[Bunty2772]

In an NOID situation, you have 30 days (typically less due to turnaround time) to respond. It's extremely unlikely that you can get a PERM case started and approved and an I-140 filed in that time, especially if further recruitment needs to happen.

Now why do I need a new PERM case and I-140 file to claim portability. All I was saying was if USCIS comes back and insists on proving offer of job from Company A while I'm at Company C, and if Company C is willing to provide such a letter to support my portability efforts(which is the current case), then I could go to a Company D that is willing to support such an effort and provides me with a letter. Cause my impression was a valid job offer has to be present at the time of I-485 adjudication. Is that not correct?

Having said that, 30 days or less may be too little time to find a new employer that is willing to support my portability case.

 

[Bunty2772]

But it still stands true that they may inquire about the old one. With who? Company C who doesn't want to cooperate?A new I-140 doesn't keep an old I-485 alive, except in the context of AC21 portability (i.e. the second I-140 used as supporting evidence of a same or similar job offer).

Wow, that's a good point. The second I-140 could be used as evidence for AC21 portability. Very interesting!

Jackolantern/RealCanadian, please assume for a second that I have no other choice but to join this Company C. What are things I need to do for the best outcome with respect to my GC? Should I just wait for my current I-485 to be approved? Should I request this Company C to file for a new PERM case? Should I let the new company filing a new I-140 and recapture priority date? What's the best course of action for me at this point? Thanks much for all your replies. You guys are the best.

 

[TheRealCanadian]

With who? Company C who doesn't want to cooperate?

In the strictest sense, Company C doesn't need to cooperate - Bunty just needs to provide evidence of his job and the duties for AC21 benefits.

A new I-140 doesn't keep an old I-485 alive, except in the context of AC21 portability

Yes it does. Read up on interfiling.

 

[TheRealCanadian]

Now why do I need a new PERM case and I-140 file to claim portability

You don't. It's just useful as a failsafe in the unlikely event that AC21 portability is denied.

Should I request this Company C to file for a new PERM case? Should I let the new company filing a new I-140 and recapture priority date? What's the best course of action for me at this point?

Well, they need to file the PERM in order to file the new I-140, in most cases. If they're willing to file the LC/I-140 at no cost to you, then by all means let them. If not, just concentrate on making a good AC21 case. That'll probably be all you need to do.

 

[Bunty2772]

You don't. It's just useful as a failsafe in the unlikely event that AC21 portability is denied.



Well, they need to file the PERM in order to file the new I-140, in most cases. If they're willing to file the LC/I-140 at no cost to you, then by all means let them. If not, just concentrate on making a good AC21 case. That'll probably be all you need to do.

Thanks a lot.

Yes, the company is willing to file LC/I-140 at no cost to me. So that's not going to be a problem.

What are you thoughts on JackOLantern's concern about the new I-140 creating trouble for my current I-485?

As for portability, can you point me to another thread here that discusses the documentation needed for this? What kind of a letter do I really need if I need to present a good AC21 case if the company doesn't want to get specific? Also, since my I-140 is not going to be revoked, I'm not going to invoke portability when I change jobs. I'll only try to go this route if a NOID/RFE is invoked on my case. Is this a good strategy?

 

[TheRealCanadian]

What are you thoughts on JackOLantern's concern about the new I-140 creating trouble for my current I-485?

There's nothing that prevents you from having two I-140s. At worst, USCIS will take note and ask "hey, who do you want to work for?" at which point you respond that your intent is to work for Employer C based on AC21, and if the job doesn't meet "same or similar" then you want to work for Employer C based on the new I-140.

What kind of a letter do I really need if I need to present a good AC21 case if the company doesn't want to get specific?

It depends on what your LC had, and your new job title. My LC was for a software developer, and all I presented at my interview was "TRC is employed as a Java Programmer/Analyst for $XX/hour since DATE." That's all it took.

I'll only try to go this route if a NOID/RFE is invoked on my case. Is this a good strategy?

It's no better or worse than proactively notifying USCIS.

 

[sfmars]

AC21 letter

USCIS does not care about these letters, there is no such requirement to inform them when you change job after I485 pending more than 180 days.

I know couple of people who wrote letters and however they got RFE when their I-140 were revoked.

You may try to ask your new employer himself to write and send this letter (confirming your new employment) to USCIS but I do not believe it will help to avoid RFE if old employer revokes original I-140.

USCIS does not care about job title they will compare responsibilities, I believe if original LC was filed for IT position and new job is also in IT, it will not cause an issue.

 

[Bunty2772]

USCIS does not care about these letters, there is no such requirement to inform them when you change job after I485 pending more than 180 days.

I know couple of people who wrote letters and however they got RFE when their I-140 were revoked.

You may try to ask your new employer himself to write and send this letter (confirming your new employment) to USCIS but I do not believe it will help to avoid RFE if old employer revokes original I-140.

USCIS does not care about job title they will compare responsibilities, I believe if original LC was filed for IT position and new job is also in IT, it will not cause an issue.

Thanks sfmars. I'm not worried about I-140 being revoked by the original company. And as far the job is concerned, the responsibilities are very similar to what my original case was approved for so that should be fine.

 

[Bunty2772]

But it still stands true that they may inquire about the old one. With who? Company C who doesn't want to cooperate?A new I-140 doesn't keep an old I-485 alive, except in the context of AC21 portability (i.e. the second I-140 used as supporting evidence of a same or similar job offer).

Jack, would you mind adding your final two cents to the discussions? You have provided another perspective on this issue and I'd like to know your suggestions too before making up my mind. Thanks much.

 

[Bunty2772]

There's nothing that prevents you from having two I-140s. At worst, USCIS will take note and ask "hey, who do you want to work for?" at which point you respond that your intent is to work for Employer C based on AC21, and if the job doesn't meet "same or similar" then you want to work for Employer C based on the new I-140.



It depends on what your LC had, and your new job title. My LC was for a software developer, and all I presented at my interview was "TRC is employed as a Java Programmer/Analyst for $XX/hour since DATE." That's all it took.



It's no better or worse than proactively notifying USCIS.

Thanks a lot for all your replies. It really helps me in making my decision about joining Company C.

 

[perm_lc]

Interesting topic. Promted me to post my thoughts.

Has company A filed LC and 140 on behalf of you, while you are working for company A in H1B status? If so, the matter is very simple. You and company A had a full intent to work/hire you on a permeneat basis when company A filed 140. Strong point is, you already worked for company A and showed the intent.

Only thing you filed 485, based on company A's 140 when you are working at company B. It does not matter. You can very well port company A 140 to Company C, if job offer from C is similar to job offer in company A 140. You do not require a new PERM or 140 or 485 from company C. You can either work on H1B or EAD at company C. If you file new 140, it may cause new confusion as you have to link the new 140 with your old 485. Also you have to recapture your PD. It is unneccssary.

My advise is join company C either in H1B or EAD and do nothing. If they send RFE for employment in future, then show the permanent offer letter from Company C and you are porting from company A. It is very simple.

 

[StressTestInUSA]

Hi perm_lc..

when we show the employment letter from 'C' with who we started working on AC21, does not USCIS bother about the 'ability to pay' issue about company C..?

of course the scenario is filed 485 with approved i140 of ex-employer 'A' while working with 'B' and now joining 'C' on AC21...

 

[Bunty2772]

Interesting topic. Promted me to post my thoughts.

Has company A filed LC and 140 on behalf of you, while you are working for company A in H1B status? If so, the matter is very simple. You and company A had a full intent to work/hire you on a permeneat basis when company A filed 140. Strong point is, you already worked for company A and showed the intent.

Only thing you filed 485, based on company A's 140 when you are working at company B. It does not matter. You can very well port company A 140 to Company C, if job offer from C is similar to job offer in company A 140. You do not require a new PERM or 140 or 485 from company C. You can either work on H1B or EAD at company C. If you file new 140, it may cause new confusion as you have to link the new 140 with your old 485. Also you have to recapture your PD. It is unneccssary.

My advise is join company C either in H1B or EAD and do nothing. If they send RFE for employment in future, then show the permanent offer letter from Company C and you are porting from company A. It is very simple.

The problem that I have now is the part about showing the permanent offer letter from Company C. As of now, they are not willing to support me in my portability efforts. I'm going to try and fight it again if an when an NOID/RFE occurs in the future but meanwhile, a new I-140 is not a bad idea if I can recapture the old priority date and INTERFILING as per RealCanadian's suggestion. Feel free to add to your comments.

 

[perm_lc]

The problem that I have now is the part about showing the permanent offer letter from Company C. As of now, they are not willing to support me in my portability efforts. I'm going to try and fight it again if an when an NOID/RFE occurs in the future but meanwhile, a new I-140 is not a bad idea if I can recapture the old priority date and INTERFILING as per RealCanadian's suggestion. Feel free to add to your comments.

They do not need to support any thing in AC21. What you need is a half page letter showing your employment and duties. Thats all. That too, only if USCIS requests thro RFE. First, 485 is your application. You neighter require a lawyer nor company C involvement in this process. If they dont provide half page letter, and they are suggesting to file new PERM/140, it is some thing fishy. Your situation is very simple, no money involved except postage charge to send a employment letter.

If you go other route, it involves lot of money and time. Infact, it may complicates the situation. The real beneficiary is lawyer and uscis (filing fee).

This is my opinion. You may consult a attorney to finalize your decision.

 

[perm_lc]

I just wanted to make clear that I still have 2 years H1B left and I dont want to use EAD to be safe in case my current I-485 gets denied.

I'm confused about the "employment letter" that you are referring to in your posts. For AC21, I assumed that the letter you need from the new employer should explicitly state that they have an intent to hire me based on the approval of my I-485. Will a simple employment letter stating job title, salary etc. suffice to invoke AC21 portability?

Offer letter/EVL for AC21 is not a special one. It need not address to USCIS. It can say to whom it may concern. It should convey the message in simple terms, that you are a permanant full time emplyoee (if you are already employed) and what is is your occupation, salary and job duties. Thats all.

You can get a this kind of letter, for qualifiying a home mortgage etc..

 

[Bunty2772]

Offer letter/EVL for AC21 is not a special one. It need not address to USCIS. It can say to whom it may concern. It should convey the message in simple terms, that you are a permanant full time emplyoee (if you are already employed) and what is is your occupation, salary and job duties. Thats all.

You can get a this kind of letter, for qualifiying a home mortgage etc..

Thanks a lot for your input. It's good to know that the letter for portability does not have to specific like an offer letter that is usually filed during the I-485 process.

The problem is that this company has one paralegal that is the point of contact with an outside law firm. The paralegal tends to think that he knows everything about immigration and hence has been making crazy assumptions about portability. He claims that he talked to one of the lawyers in the firm and the lawyer advised him against portability. I guess it was my fault for bringing it up during the hiring process since I was not very clear at that time about the kind of letter I would need from the new employer. My hiring manager is very supportive of my portability needs and is willing to help me with the letter in the future if such a need arises during the processing of my I-485.

So do you think that a new PERM and I-140 would actually result in an RFE on my I-485? Or is it a good back up plan to have in case my current I-485 gets denied due to some craziness?

 

[igor_ch]

I'm switching the companies and have exact same questions, except that I always worked for company A and never switched to company B, but now go to company C. Company C is a big and good one, and they have an in-house non-lawyer person, who interfaces with the new hires. Perhaps, we're heading for the same company : )

Anyhow, they're fully supportive of AC21 in my case, but I do not have that issue of NOT working for A at the time of filing I-485. They are OK to file new PERM and I-140 for me at no cost, but they don't think it's really needed, and are saying it would not hurt.

Based on what I read, company C is right - it would be risky to keep your old I-485, as it will be hard to prove that you *ever* intended to work for A at the time of GC approval. And that may happen anyway, regardless of whether you use AC21 or stay with company B.

Read "Question 3" here: http://www.murthy.com/news/n_nuacp1.html

-- filing a case as a future job offer, without working for the sponsor, then using AC21 to move to an alternative position, can raise questions of intent and potential fraud or misrepresentation

Few big companies would agree to any risk like that, and I understand them, their reputation matters. One fraudulent AC21 case may hurt their relationships with USCIS while they still have hundreds more people to sponsor. I know big companies sponsor hunders of people and have 0% denial rate on LC or I-140. They do not want a single bad case, even if it's "just" AC21. We, knowing immigration law so "well" from reading these forums, studying some USCIS memos, FAQ's and CFR's, may think the risk is minimal, but they always consult lawyers and may not agree with us.

Speaking about disclosing your immigration status at the time of interview - I think you did well bringing it right away. You're going for a good company, keeping good relationships with previous employers, getting a nice job and benefits, so you DO want to see how that company reacts to your immigration situation, otherwise you're risking to get into a place where you do not want to be in and so hurt your career.

Having said that, I'm not a lawyer, nor currently am I planning to become one. So, consider all words here with a grain of salt and consult your "inner lawyer" or just hire an external one and get a second opinion. In fact, I will consult an external lawyer for my own case to get a second opinion.

Thanks a lot for your input. It's good to know that the letter for portability does not have to specific like an offer letter that is usually filed during the I-485 process.

The problem is that this company has one paralegal that is the point of contact with an outside law firm. The paralegal tends to think that he knows everything about immigration and hence has been making crazy assumptions about portability. He claims that he talked to one of the lawyers in the firm and the lawyer advised him against portability. I guess it was my fault for bringing it up during the hiring process since I was not very clear at that time about the kind of letter I would need from the new employer. My hiring manager is very supportive of my portability needs and is willing to help me with the letter in the future if such a need arises during the processing of my I-485.

So do you think that a new PERM and I-140 would actually result in an RFE on my I-485? Or is it a good back up plan to have in case my current I-485 gets denied due to some craziness?

 

[Bunty2772]

I'm switching the companies and have exact same questions, except that I always worked for company A and never switched to company B, but now go to company C. Company C is a big and good one, and they have an in-house non-lawyer person, who interfaces with the new hires. Perhaps, we're heading for the same company : )

Anyhow, they're fully supportive of AC21 in my case, but I do not have that issue of NOT working for A at the time of filing I-485. They are OK to file new PERM and I-140 for me at no cost, but they don't think it's really needed, and are saying it would not hurt.

Based on what I read, company C is right - it would be risky to keep your old I-485, as it will be hard to prove that you *ever* intended to work for A at the time of GC approval. And that may happen anyway, regardless of whether you use AC21 or stay with company B.

Igor, if you read through the latest Yates Memo on AC21, the "intent" of employing the petitioner should exist at both the I-140 stage and I-485 stage. At the I-140 stage, I was working for the company and all documents were provided to confirm intent. At the I-485 stage, even though I was not working for the company, I was provided with a job offer letter confirming such intent of future employment by the same company. The memo also suggests that the lack of intent should not be automatically assumed. They should be able to use the documents provided as evidence (please see Q. 10 on page 6).But I completely understand that it is at the discretion of the adjudicating officer to ask more questions about it. In any case, Company C does not have anything to do with an I-485 application which is solely mine. I just wanted their support in case I had to invoke portability for my case. But I really dont need for Company C to do anything at all.

Read "Question 3" here: http://www.murthy.com/news/n_nuacp1.html

-- filing a case as a future job offer, without working for the sponsor, then using AC21 to move to an alternative position, can raise questions of intent and potential fraud or misrepresentation

I agree but in my case, I did work for the sponsoring company even after the I-140 was approved. It was not like I never worked for them.

Few big companies would agree to any risk like that, and I understand them, their reputation matters. One fraudulent AC21 case may hurt their relationships with USCIS while they still have hundreds more people to sponsor. I know big companies sponsor hunders of people and have 0% denial rate on LC or I-140. They do not want a single bad case, even if it's "just" AC21. We, knowing immigration law so "well" from reading these forums, studying some USCIS memos, FAQ's and CFR's, may think the risk is minimal, but they always consult lawyers and may not agree with us.

I understand

Speaking about disclosing your immigration status at the time of interview - I think you did well bringing it right away. You're going for a good company, keeping good relationships with previous employers, getting a nice job and benefits, so you DO want to see how that company reacts to your immigration situation, otherwise you're risking to get into a place where you do not want to be in and so hurt your career.

I agree.

Having said that, I'm not a lawyer, nor currently am I planning to become one. So, consider all words here with a grain of salt and consult your "inner lawyer" or just hire an external one and get a second opinion. In fact, I will consult an external lawyer for my own case to get a second opinion.

I have already started at this new company. I'm working on making myself a valuable resource so that when the time comes, the company will back me 100%.

Thank you for your answers. I understand the risk in my case. But I also believe I have a good chance of making AC21 work if needed. Good luck to you on your case.