Urgent advise needed about AC21 versus new PERM

[Bunty2772]

Company A filed for GC and I got I-140 approved but could not file for I-485 due to retrogression. I joined Company B and got a 3 year extension(after 6years) based on the I-140 approved by Company A. While at Company B, I filed an I-485 based on Company A's I-140 since Company A was willing to give me future job offer letter as required. Now I have a great new offer from Company C that I'm really interested in. However, Company C is not willing to support portability of my I-485 because it thinks there is some risk to them by doing that since I filed for my I-485 while not working for Company A but based on Company A's I-140. But Company C is proposing to do two things to mitigate the portability.

1) Get another extension on my H1B when I file for the H1B transfer to Company C based on the original Company A's I-140 approval since the dates are still retrogressed for my PD (EB-3 India). I have 2 years left on my current H1B and so with this extension I will have an H1B valid till 2011.

2) Apply for a new PERM and recapture priority date from the old I-140.

What do you suggest I do? I really want this job since it is a much senior/highly paying position which will be very good for my career. By looking at the current visa dates, it may take the same amount of time to get a GC using either portability or a new PERM.

But I need some of the gurus in this form to give me a clearer picture of my options to help me make the right decision.

 

[Jackolantern]

They want to lock you in. If you abandon the existing I-485 and go ahead with a new PERM and I-140, even if you port the old PD your priority date won't be current, and you'll be unable to file the new I-485. You could then be stuck for years.

I really want this job since it is a much senior/highly paying position which will be very good for my career.

If it is too senior compared to the original PERM job, it won't satisfy the "same or similar" criteria for AC21.

Looks like it may be time to tell company C to take a hike, unless they'll hire you on your terms.

Next time, don't advertise the specifics of your immigration status to potential employers. Don't say anything more than you are a legal resident with authorization to work (assuming you have an EAD). Before hiring you, it is illegal for them to ask for more than that, unless they have a valid legal reason for restricting the job to only US citizens (and 99% of non-government jobs don't have such a reason). And don't talk about portability of anything until you have a firm offer. Once you're hired, when filling out the I-9 form you can ask HR for an employment letter ... just say something like "I need to report my employment details to Immigration. Please provide a letter with my salary and job description."

 

[TheRealCanadian]

They want to lock you in. If you abandon the existing I-485 and go ahead with a new PERM and I-140, even if you port the old PD your priority date won't be current, and you'll be unable to file the new I-485. You could then be stuck for years.

He doesn't need to abandon the existing I-485; the advantage of doing second PERM and I-140 is that it's a good fallback if the AC21 fails for whatever reason.

 

[Jackolantern]

He doesn't need to abandon the existing I-485; the advantage of doing second PERM and I-140 is that it's a good fallback if the AC21 fails for whatever reason.

True ... but I would still be wary of that company's attitude and wouldn't join them. It would be one thing if they claimed the portability wouldn't work because the new job is too different, but their stance being based on the fact that another company initiated the process and wanting to do another H1B etc. makes them seem shady and controlling to me. But anyway, that's just my opinion, it's up to the poster to make that decision.

 

[assur]

I slightly deviate, as professional, always mention your EAD-Status in job interview ask for full support (paper work) in legal matters, just in case. This will save you from uncertain moves of USCIS.
As long as you are on EAD-Status, consider "adding" paper-work support as one of the condition in the lucrative job offers. This will comfort you in your future.
In your case employer "C" does not seem to be cooperative, why dont you try to find employer "D" who would cooperate you and your status plus the perks you looking for?

 

[Jackolantern]

I slightly deviate, as professional, always mention your EAD-Status in job interview ask for full support (paper work) in legal matters, just in case. This will save you from uncertain moves of USCIS.
As long as you are on EAD-Status, consider "adding" paper-work support as one of the condition in the lucrative job offers. This will comfort you in your future.

More likely, it will give discomfort to uninformed HR drones. If they think your status is questionable or hiring you means more work for them than hiring a GC holder or US citizen, that may mean no job offer for you. And they won't necessarily tell you that is the reason; they'll just say they hired somebody else.

But after you have started working for them, it will be easy to get them to produce an employment letter. And maybe to pay for your EAD renewals.

 

[Bunty2772]

Thanks for the replies, gurus! I had to be a upfront with this company since it's a big company and they were not going to give me any letter for immigration without asking a million questions since they do GC's for a lot of people there.

As RealCanadian was saying, I don't have to abandon my current I-485. Is that really true? Will I be able to recapture the priority date from the old I-140 even though I have a current I-485 application using the same I-140?I think the priority date recapture is done during the I-140 filing stage. I'm worried that I will have to withdraw my previous I-485 to be able to recapture the priority date. Is that correct?

I may be able to convince these people to support portability after I join them but I'm not certain about it. My current I-485 file is complete and includes an offer letter from the original company. I may get lucky and get an approval without any NOIDs. Is this a correct assumption?

Thanks for all your replies

 

[Bunty2772]

More likely, it will give discomfort to uninformed HR drones. If they think your status is questionable or hiring you means more work for them than hiring a GC holder or US citizen, that may mean no job offer for you. And they won't necessarily tell you that is the reason; they'll just say they hired somebody else.

But after you have started working for them, it will be easy to get them to produce an employment letter. And maybe to pay for your EAD renewals.

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?

 

[Jackolantern]

Will a simple employment letter stating job title, salary etc. suffice to invoke AC21 portability?

If you are already employed by them, that plus the job description will be sufficient. But if they don't plan to hire you until after the GC is approved, it should state that they'll hire you upon GC approval.

The employer's letter doesn't have to say anything specific about AC21 portability; you or your lawyer can mention that separately in a cover letter. Claim AC21 in your letter, and say the employer's letter is enclosed as supporting evidence (and include copies of relevant documents such as the I-485 receipt and approved I-140).

And you don't even have to send the letter to USCIS at all to benefit from the portability, unless the original employer revokes the I-140.

Before you make the job change though, make sure it is indeed similar enough to satisfy the AC21 "same or similar" condition.

 

[Bunty2772]

If you are already employed by them, that plus the job description will be sufficient. But if they don't plan to hire you until after the GC is approved, it should state that they'll hire you upon GC approval.

The employer's letter doesn't have to say anything specific about AC21 portability; you or your lawyer can mention that separately in a cover letter. Claim AC21 in your letter, and say the employer's letter is enclosed as supporting evidence (and include copies of relevant documents such as the I-485 receipt and approved I-140).

And you don't even have to send the letter to USCIS at all to benefit from the portability, unless the original employer revokes the I-140.

Before you make the job change though, make sure it is indeed similar enough to satisfy the AC21 "same or similar" condition.

Thanks JackOLantern. I'm certain that my I-140 will not be revoked by Company A. Does this mean that I don't have to invoke portability at all? Does it not matter that it may raise suspicion that I was not working for
Company A while I filed for my I-485? I was working for Company B at that time. I do understand that it is not required that I be employed by Company A while applying for I-485 since GC is for a future job. But still, would the adjudicating officer be concerned about this? the original job offer from Company A is not really not valid anymore since they layed off most of the employees soon after I filed for my I-485. The company is still operational though in a limited capacity. Please advise about invoking AC21 portability. Also, please try and reply to the queries in the previous port which has to do with priority date recapture. Thanks much for all your help and input.

 

[Bunty2772]

If you are already employed by them, that plus the job description will be sufficient. But if they don't plan to hire you until after the GC is approved, it should state that they'll hire you upon GC approval.

The employer's letter doesn't have to say anything specific about AC21 portability; you or your lawyer can mention that separately in a cover letter. Claim AC21 in your letter, and say the employer's letter is enclosed as supporting evidence (and include copies of relevant documents such as the I-485 receipt and approved I-140).

And you don't even have to send the letter to USCIS at all to benefit from the portability, unless the original employer revokes the I-140.

Before you make the job change though, make sure it is indeed similar enough to satisfy the AC21 "same or similar" condition.

I forgot to mention that the job is definitely similar. The title is that of an Architect even though the actual job code that I'm being hired under is that of a developer.

 

[TheRealCanadian]

Will I be able to recapture the priority date from the old I-140 even though I have a current I-485 application using the same I-140?I think the priority date recapture is done during the I-140 filing stage.

Priority date recapture can be done at any time, really, but the I-140 stage is a good time. There's nothing preventing you from filing a second I-140 while you have an I-485 pending, and retaining the original PD.

I'm worried that I will have to withdraw my previous I-485 to be able to recapture the priority date. Is that correct?

No, why do you feel this way?

 

[Bunty2772]

Priority date recapture can be done at any time, really, but the I-140 stage is a good time. There's nothing preventing you from filing a second I-140 while you have an I-485 pending, and retaining the original PD.



No, why do you feel this way?

Thank you. That's good to know.

So lets assume that my PD does not become current till I have an approval of the new I-140 that the new company is planning to file(PERM case). Does this mean I can have two approved I-140's of the same PD at the same time? And when my PD does become current in the visa bulletin, will I need to withdraw my old I-145 to file for the new I-485 based on the new company I-140?

 

[TheRealCanadian]

Does this mean I can have two approved I-140's of the same PD at the same time?

Sure.

And when my PD does become current in the visa bulletin, will I need to withdraw my old I-145 to file for the new I-485 based on the new company I-140?

No, you just tell USCIS that you want the I-485 to be supported by the second, not the first, I-140. To be honest, I'd do nothing when the second I-140 is approved. If USCIS asks, I'd claim AC21 relief, with the proviso that if relief is not granted, that the I-485 should be approved based on the second I-140. That gives you two kicks at the cat.

 

[Jackolantern]

But still, would the adjudicating officer be concerned about this? the original job offer from Company A is not really not valid anymore since they layed off most of the employees soon after I filed for my I-485. The company is still operational though in a limited capacity. Please advise about invoking AC21 portability.

The I-140 from company A is already approved, so USCIS probably won't ask about the viability of that job and "ability to pay" again, although they can. But if their offer really isn't valid anymore, you should use portability to another employer who is offering a real and valid job.

Also remember, using portability is not the same as telling USCIS about invoking portability. Although there is an "expectation" to do it, there is no requirement to inform USCIS when you change jobs or job offers; you just have to be able to prove that the job change satisfies the AC21 criteria, if that proof is requested with an NOID or RFE, or requested later on if/when you apply for citizenship. But proactively telling the USCIS may convince them not send an NOID (although they can still do it anyway if they want) upon the employer requesting revocation of the I-140.
See this AC21 memo from USCIS:
http://www.uscis.gov/files/pressrelease/I140_AC21_8403.pdf

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.

And also this one:
http://www.immigration.com/newsletter1/newac21guidance.pdf

But if they don't revoke the I-140, you shouldn't have to worry about the above stuff, as long as USCIS doesn't spontaneously request an RFE about your employment situation for some random reason.

 

[Bunty2772]

Sure.



No, you just tell USCIS that you want the I-485 to be supported by the second, not the first, I-140. To be honest, I'd do nothing when the second I-140 is approved. If USCIS asks, I'd claim AC21 relief, with the proviso that if relief is not granted, that the I-485 should be approved based on the second I-140. That gives you two kicks at the cat.

Thanks much. It's very interesting to note that I could continue to use the current I-485 with the new I-140. But since this new company does not want to do anything with my old case, I'm guessing that this is not a possibility for me.

So, just as having two I-140 with the same PD, it looks like I could in theory also have two I-485's filed at the same time. However, I won't be able to file the second I-485(using new I-140 with recaptured PD) till my PD becomes current, which would be the same time that USCIS decides to look at my previous I-485. At the time of filing this new I-485, what do I do about filing for EAD or AP? If my current EAD(which I'm not using) or AP(not used) haven't expired, is it safe/legal to file for another EAD and AP while filing this new I-485 petition?

 

[Jackolantern]

You can't have two pending I-485's at the same time. You may get away with it for a short while, but once USCIS realizes both are pending, one has to be rejected.

Also, when the second I-140 is filed, it may prompt the USCIS to send an RFE to inquire about the first I-140 and its associated I-485, to see if that old one is still viable and is not being abandoned. That could result in revocation of the old I-140/I-485 if you and company A cannot provide satisfactory proof of the continued validity of that job offer. That would leave you either with nothing, or stuck with company C.

What company C is doing is illegal. Once you already have authorization that qualifies you to legally work for them, they can't refuse to hire you based on the specific type of status you have, or require you to change to a particular status. And since they obviously aren't restricting the job to US citizens, and you presumably have a valid EAD along with your pending I-485, you are legally authorized to work for them. Get a lawyer to send them a letter confirming that you are work-authorized and that they would be violating the law (listing the laws) by refusing to hire you with your existing work authorization.

 

[Bunty2772]

You can't have two pending I-485's at the same time. You may get away with it for a short while, but once USCIS realizes both are pending, one has to be rejected.

Also, when the second I-140 is filed, it may prompt the USCIS to send an RFE to inquire about the first I-140 and its associated I-485, to see if that old one is still viable and is not being abandoned. That could result in revocation of the old I-140/I-485 if you and company A cannot provide satisfactory proof of the continued validity of that job offer. That would leave you either with nothing, or stuck with company C.

What company C is doing is illegal. Once you already have authorization that qualifies you to legally work for them, they can't refuse to hire you based on the specific type of status you have, or require you to change to a particular status. And since they obviously aren't restricting the job to US citizens, and you presumably have a valid EAD along with your pending I-485, you are legally authorized to work for them. Get a lawyer to send them a letter confirming that you are work-authorized and that they would be violating the law (listing the laws) by refusing to hire you with your existing work authorization.

Thank you.

I may have confused you a little with all the information. Let me be clear that I'm not currently working on EAD even though I have an approved EAD card. I'm still continuing to work on my H1B at the current company. And it was me who wanted to continue to transfer and work on H1B in order to be safe in case my I-485 gets denied due to some reason in the future in which case I believe I will be out of status immediately. The company did not suggest in any way that they expect me to change my status. All that they were doing with respect to the work authorization was to transfer my H1B and get another 3-year extension using my old I-140. The only thing that they are saying no to is supporting my portability efforts on I-485.

So, it looks like I may be better off not requesting a new PERM case with the new company. Still, I'm certain that my original I-140 is not going to be revoked, I could just keep my fingers crossed and hope that my I-485 gets approved in the future(when PD is current) without getting any RFE's or NOID. In the unfortunate event that I do get RFE or NOID on that I-485, I could then request this new company(with may be old company by then ) to support portability at that time. If they refuse, I could go to a new Company D(worst case scenario) that may be willing to support portability and reply to the RFE, NOID based on this new offer. I know this is a long shot but I'm guessing that I'll have a little time to reply to the RFE/NOID(60 days??/ 90 days??). What do you think?

 

[TheRealCanadian]

Also, when the second I-140 is filed, it may prompt the USCIS to send an RFE to inquire about the first I-140 and its associated I-485, to see if that old one is still viable and is not being abandoned. That could result in revocation of the old I-140/I-485 if you and company A cannot provide satisfactory proof of the continued validity of that job offer.

Not at all.

First off, there's a good chance that USCIS will merely process the second I-140 and do nothing. Second, even if they do question the viability of the first job offer, our OP merely claims portability benefits under AC21. Finally, even in the worst case and the new job doesn't qualify under AC21, he has a pending I-140 and therefore can keep the I-485 alive.

In the unfortunate event that I do get RFE or NOID on that I-485, I could then request this new company(with may be old company by then) to support portability at that time.

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.

 

[Jackolantern]

Not at all.

First off, there's a good chance that USCIS will merely process the second I-140 and do nothing.

But it still stands true that they may inquire about the old one.

Second, even if they do question the viability of the first job offer, our OP merely claims portability benefits under AC21.

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

Finally, even in the worst case and the new job doesn't qualify under AC21, he has a pending I-140 and therefore can keep the I-485 alive.

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).