Urgent Help -- AC21 portability issue ??

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yuva05

New Member
Folks,

Here is a brief description of my Green Card process:

Used to work for company "A" (from March 99 to Sep. 2000). Quit that company & joined company "B" (from Sep. 2000 to date). Company "B" did not file for my Green card for about an year as they had no budget to sponsor my Green Card process. Contacted old company "A" to file for my Green Card as an intended future employee. They agreed with one condition that I will pay all expenses. I said ok. They substituted me for an already approved Labor & filed I-140 (Oct. 2001). I-140 approved in Jan 2002. Company "A" filed for I-485 in March 2002. Got an RFE from INS 3 months ago asking for current employment letter & pay stubs. My attorney submitted Letter of Employment & current pay stubs from company "B" and showed my case to be "portable" to company "B" under AC21 rule ( I-485 pending for more than 180 days). I have already gone for fingerprinting twice & recently applied for EAD renewal for the third time. Now I have few questions:

1) Is my case really "portable" to company "B" under AC21 act? Will I have any issues during interview time?
2) Do I need any documents from company "A" ?
3) What documents should I take for interview?
4) Should I hire an attorney for interview (my previous attorney is based in a different state, so he can not come) ?
5) Would I have any issues during citizenship time?

I will really appreciate your quick answers/comments as my interview is scheduled in next 10 days. You guys have always been a great help. Wish you all good look.

Thanks.....

Category: EB3
Labor: I was Substituted for an already approved labor case
I-140: Approved on Jan 2002.
I-485: RD: Mar 2002; ND: Apr 2002
Latest Status: Received interview notice from local INS/BCIS office.
 
Yuva, Are you going work for company 'A' after getting GC. If so, you need to take company A's letter. Else use AC21 rule and carry current emp letter.

Today only i submitted current emp letter as a response to RFE
 
anxiouslady said:
Your case is strong and 100% legal. the famous Yale memo clearly says that you needn't work for company A to apply for AC21. The only issue which INS may chalenge is, do you really have the intent to work for A when you submited your 140/485.
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That's the Yates memorandum, and the case will turn as to the intent at the time of I-140 approval. If USCIS doesn't inquire as to intent, then you should be fine. If they do, then stuff gets interesting.
 
How to prove 'intent' ? any suggestions?

If the law requires, I can start work for sponsoring employer after getting GC. But in 485 RFE, they asked only current emp letter. So i submitted current emp letter. (Did not submitted any letter from sponsoring employer)
 
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Folks,

I consulted on attorney regarding my case yesterday. He says that all depends on the interviewing officer. There could be 2 situations.
1) Officer, just checks for the current employment, and has no concerns about the sponsering employer, and case is approved on basis of AC21.
2) Officer needs proof of intend, from the sponsoring company A. In this case, i should be able to produce a letter from A, stating that they have an open position for me once the green card is approved. Here, it gets tricky, as he may want to see my pay stubs from company A, and grant me a further interview date of say 3 months from now. But, could also be that he doesn't care, and is satisfied with the letter from company A. (In this case also, my attorney advises me to go back to company A as an employee)
So, my attorney has advised me to take a letter from my previous Employer A, and in case needed, be able to show it.
Thanks to all for your support, and also please let me know what you think about the above suggestion.

Thanks & good luck
 
Thanks Yuva.

I consulted on attorney regarding my case yesterday. He says that all depends on the interviewing officer. There could be 2 situations.
1) Officer, just checks for the current employment, and has no concerns about the sponsering employer, and case is approved on basis of AC21.

GCPEN:-99% we come under case 1. So no issues.DONE

2) Officer needs proof of intend, from the sponsoring company A. In this case, i should be able to produce a letter from A, stating that they have an open position for me once the green card is approved. Here, it gets tricky, as he may want to see my pay stubs from company A, and grant me a further interview date of say 3 months from now. But, could also be that he doesn't care, and is satisfied with the letter from company A. (In this case also, my attorney advises me to go back to company A as an employee)
So, my attorney has advised me to take a letter from my previous Employer A, and in case needed, be able to show it.
Thanks to all for your support, and also please let me know what you think about the above suggestion.

GCPEN:- Your attorney and my attorney has exactly same opinion. That's good and got more confidence.

Please update once you attend interview.
 
Went for my interview. Officer, asked some straight questions regarding current employmnet, DOB, paystubs, salary, Tax returns of 2003, w2s, first date of entry in US, and some questions regarding any arrests or drug/alcolhol issues.

While the officer was asking about my current employment( company B), my attorney mentioned that the labour was a substitute case, and this is a AC21 portability case. (not sure why he mentioned that when the officer did not even ask any thing rearding this?)
Then Officer asked some questions from my wife. (DOB,drug/alcohol issues etc, current status in Us, date of entry)
Then Officer asked us to sit outside, as he had to run some security check on my case.
AFter around 30 minutes, he called us back, and said that "Labor substitution was no issue". "However, he sees no intend to be employed by the petitioning employer (company A)".
At that moment, my attorney said that the job position was still open with the petitioning employer(company A), and showed the letter from my sponsoring company.
My attroney further said that the portability applies as per AC 21, on my case, and tried to provide explanation.
But, the Officer said that my passport has been already stamped for today, with "485 Pending status". And, BCIS will notify us regarding their decision on my case, by mail, within 180 days.
Oficer did not care for my attorney's explantion efforts, but kept a copy of the letter from the sponsoring company A. ( Officer said that he needs no explanation, he has all the information with him.)

So, again no decision was made....... "Have to wait and watch". What do you guys think.. Can the 485 be denied too?

Good luck to all in the same immigration boat!!....
AC21, does not seem to be a smooth ride, anymore! (proof of intend is a tough bet here)!!
Thanks
 
thanks for the information
yuva05 said:
Went for my interview. Officer, asked some straight questions regarding current employmnet, DOB, paystubs, salary, Tax returns of 2003, w2s, first date of entry in US, and some questions regarding any arrests or drug/alcolhol issues.

While the officer was asking about my current employment( company B), my attorney mentioned that the labour was a substitute case, and this is a AC21 portability case. (not sure why he mentioned that when the officer did not even ask any thing rearding this?)
Then Officer asked some questions from my wife. (DOB,drug/alcohol issues etc, current status in Us, date of entry)
Then Officer asked us to sit outside, as he had to run some security check on my case.
AFter around 30 minutes, he called us back, and said that "Labor substitution was no issue". "However, he sees no intend to be employed by the petitioning employer (company A)".
At that moment, my attorney said that the job position was still open with the petitioning employer(company A), and showed the letter from my sponsoring company.
My attroney further said that the portability applies as per AC 21, on my case, and tried to provide explanation.
But, the Officer said that my passport has been already stamped for today, with "485 Pending status".

-- Can you help me in understanding "485 Pending status" this new status.

And, BCIS will notify us regarding their decision on my case, by mail, within 180 days.
Oficer did not care for my attorney's explantion efforts, but kept a copy of the letter from the sponsoring company A. ( Officer said that he needs no explanation, he has all the information with him.)

So, again no decision was made....... "Have to wait and watch". What do you guys think.. Can the 485 be denied too?

--hope you will get your approval soon

Good luck to all in the same immigration boat!!....
AC21, does not seem to be a smooth ride, anymore! (proof of intend is a tough bet here)!!

As I told you earlier, I am in same boat, would like to get more info if I can,

Thanks
Thanks
Click to expand...
 
yuva05 said:
AFter around 30 minutes, he called us back, and said that "Labor substitution was no issue". "However, he sees no intend to be employed by the petitioning employer (company A)".
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Yup - that's a valid conjecture to make, and as predicted things have now gotten "interesting". Just be grateful you didn't go for CP; the question of intent is a question of "fact", not "law" and the Consular Officer's decision is not subject to appeal. In your case you might be able to.

At that moment, my attorney said that the job position was still open with the petitioning employer(company A), and showed the letter from my sponsoring company. My attroney further said that the portability applies as per AC 21, on my case, and tried to provide explanation.
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I hope your attorney didn't get paid for that shoddy bit of representation.

Look, USCIS is (legitimately, I may add) questioning your intent to work for the sponsoring employer. Having ol' birdbrain say that the position is open does absolutely NOTHING to demonstrate your intent to work for the sponsor. All it demonstrates is that the sponsor is still intent on hiring you!

What have you done to indicate your intent to work for the sponsor at the time of the I-140 approval or the I-485 filing?

And, BCIS will notify us regarding their decision on my case, by mail, within 180 days. Oficer did not care for my attorney's explantion efforts, but kept a copy of the letter from the sponsoring company A. (Officer said that he needs no explanation, he has all the information with him.)
Click to expand...

Be afraid. Be very afraid.

If I was in your shoes, I'd fire that attorney pronto and hire a good one and run this scenario by him or her. I'd wager odds that your adjustment will probably be denied - what you do NOT want is a finding of fraud because at that point you a) get deported; and b) have a lifetime re-entry bar.
 
First of all I'm not trying to hide any facts from INS. The officer never enquired about my intention of going back to company "A". Neither did he ask ab't the petitioning employer's intend. I'm not sure how can the officer jump to his own conclusions about these intends. I have always been willing to go back to the petetioning employer since the beginning. My previous attorney showed my case to be portable to company "B" under AC-21 when I got the RFE few months ago (As per my attorney, its portable and lawful as its pending for more than 180 days).
I spoke to my previous attorney this morning and he seemed pretty confident about my case. He even said that the officer was not confident about AC-21 rule and that's why didn't make decision right away.
If I'm not portable to company "B" under AC-21 rule, I'm willing to go back to company "A". Even in this scenario my case is 100% legal as green card is for future employment.
So, if its denied and I'm still willing to go back to company "A", would it be a valid appeal or not?
Still don't understand why the officer never enquired about my intentions.

Thanks & pls. let me know of your thoughts....
 
yuva05 said:
The officer never enquired about my intention of going back to company "A". Neither did he ask ab't the petitioning employer's intend. I'm not sure how can the officer jump to his own conclusions about these intends.
Click to expand...

USCIS, ICE and CBP can always draw their own conclusions from things. The good news is that a finding based on erroneous conclusions can be appealed.

If I'm not portable to company "B" under AC-21 rule, I'm willing to go back to company "A". Even in this scenario my case is 100% legal as green card is for future employment.
Click to expand...

Then go back to company A. Now. That will show your intent in advance of any adverse finding.

Look, you left Company A and moved to company B in advance of any GC process being started for you. You then want to port the I-485 to Company B. It is a perfectly reasonable inference for USCIS to make - you never intended to work for comapny A and all along wanted to work for company B.

I'd go back to A right away to give yourself some ammunition in case USCIS denies the case.
 
Yuva- Pls send me a private email

I like to talk to you in detail, pls send me an email to (ramkaps@sbcglobal.net)

thanks in advance,
 
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