Use of AC21 Portability

[kriskish]

Hi Guys,
My Company is going to apply for 140 & 485 in next few days. But my company wants to terminate the postion in US and want me to work in India. They want to continue the GC process. They will not bring me back to US. This is for sure. The only option I think I have is get 140 approved while I am in India and pass the 180 days of 485. My attorney suggested me to goto India on AP. Can I use the AC21 portability once I comeback or I can stay here and wait for EAD and work for another company without 140 approval? Can I work like that?

If I am using ac21 (after 140 approval & 485 crosses 180 days) what are the basic documents we need to show? Paystubs etc? Any suggestion or comments greatly appreciated.
Thanks
KK

 

[kriskish]

Hi UnitedNations,
Thanks again. I have some questions which you may or may not answer. But just want to share with you. If you can answer or suggest something so that I can ask attorney.

My last date with company in US is 31 Jan 05. From then I have to work in India.
Do you think it is wise for me to work from there and wait for 140 approval. Because it is taking more than a year to get approval for 140?

AP will get expired. At the same time I am not sure it is wise to stay on AP for a such a long time?

If 140 not approved do you think it is wise to work for another company?
After 180 days of 485 (concurrent filing)?

My company will support me upto some level in the documentation support as long as it is not legally binded to them?

My company said they will not revoke my 140 if I find a new job here. Do think it is wise to move to another company on H1 ( I am on 7th year extension) based on my current labor certification pending (3 years).

If you can answer or suggest something that will be great.

Thanks
KK

 

[kriskish]

KK, you really have two issues:

Do you want to go back to India or do you want to stay in USA.

If you want to stay in USA and you trust your employers to assist you and this is what you want to do then by all means go ahead and do it.

If you feel that you want to go back to India then I think you will also be safe. If somehow your h-1 gets cancelled and/or something happens to your 485, you could either now or later ask for consular processing and still come to USA through this avenue.

Hi UnitedNations,
Yes there are only two things here goback or stayback.

Say I am staying back.. What are the chances do you think I get the GC? I mean at somepoint of time CIS may send RFE's at 140 and 485. The company will not give employment in US. So I am still wondering how can we proceed with GC. Somebody mentioned doing that is a possible fraud as GC is for future employment.

Say I am going back.... What are the chances of getting GC?

Applying 140 & 485 here is one option and CP is another option..

But at 140 I think the company will support me but may not support me at 485 or CP level as they have to provide CIS the letter of employment etc..

If I am going on AP to renew it I have to comeback with in an year .. By that time if 140 gets approved and If I can search for another job and use AC21 do you think that is a good option?

Or If I go for CP what are documents needed from the company? Do you have any idea.. Company says if the documents are legally binded then they will not provide the documents..

Thanks for your patience with me..

KK

 

[kriskish]

kk, within the spirit of the law, you cannot do what you want to do. If the employer is filing a 140/485 with no intention of hiring you then you cannot get a greencard through them.

However, for practical purposes if you wanted to get a greencard through this company this is the obstacles.

if you are using adjustment of status, the company has to have intent of hiring you upon 140 approval (yates memo regarding portability). You have to have the intent of working with the 140 employer until 485 has been oustanding for more than 180 days. If you use concurrent processing and 140 isn't approved then technically by Yates memo, if the 140 takes longer than 180 days then the company has to have intent of hiring you longer then you have the intent of working with them (example, 140 takes 250 days to approve - employer would have to have intent of hiring you up until the 250 days, whereas your intent could change at the 180 day mark of the 485).

If there is an RFE on the 140, it is usually due to ability to pay the wage or your work experience, education not matching the labor.

If you get an RFE on the 485 it is to provide an employment verification letter (this can be with your 140 employer or your new employer with same/similar job).

If you go through the consular route there is no such thing as portability. Your 140 employer will have to give a job offer letter for you to submit at the interview and you will have to join them when you come into USA.

Therefore, if you want to file on future employment, company can file 140/485 for you, you can join a new company on h-1 or ead/ap, wait for 140 to get approved and 485 outstanding for more than 180 days and then send in an employment verification letter from new employer.

When people file for future greencard job and they are not working with the 485 employer then they are more susceptible to being called for an interview. At the interview you can show a new employment verification letter from the ac21 employer. If the person at the local office doesn't like what you are doing, even though it is within the law, they may ask you to prove that the 140 employer had intent of hiring you when the 140 got approved. This would take the form of you getting a letter from the 140 employer that they did have intent of hiring you. If you can get that letter then you will be fine.

Note: according to yates memo on portability, one doesn't ever have to work with the sponsoring employer, only issue is intent and if called to you would have to prove intent.

Hi UnitedNations,
Just now I came to know that Federal Labor has been cleared. We will apply 140 & 485 friday as all the documentation has been done.

As I mentioned earlier my last date with the company in US is 31st Jan 2005. Now they are talking about leave of absence until I get . If they say ok you can be on leave of absence until I get the AP. Then I can leave to India for work?

Yesterday I spoke to the attorney and he told me that maintain 180 days of my employment with this company in US. But in my case that is not possible. Say if I am here until I get my AP it is taking around 3 months. Rest of the 3 months if I work in India does it count in as 180 days or do you think this will haunt me at later stage?

The other question is does leave of absence counts into 180 days?

Attorney confidently told me that that will count. But do you see any problem over here?

Any comments or suggestion greatly appreciated.
Thanks
KK

 

[kriskish]

Remember, greencard is for future job. You don't even need to be working with employer when they file labor, 140, 485, etc.

You can do what you want to do. Leave of absence, etc. is all good. You can work in india, usa with another company it doesn't matter.

All that matters is that if you are called upon (very, very unlikely), you would have to prove that employer had intention of hiring you upon 140 approval. The 485 outstanding for more than 180 days, what you do within those days doesn't really matter, you just have to have intent (very difficult for uscis to prove you didn't) of working with that employer. After 180 days, you can send in ac21 documentation.

So what you are saying is after 140 approval I need to work for this company for atleast 180 dasy? or work for 180 irrespective of of 140 approval ( i.e after applying 140 & 485)/ Please clarify this.


If they are willing to employ you in leave of absence until ap gets approved then this is fine. It is actually fine either way whether they give you leave of absence or not.
Could you please eloborate this for me please. As my attorney told me to hold the employment until the 180th day with US company?
The good thing is that when you do send in your 140/485 and you complete the biographical information; it would appear that you are working with the sponsor. One of the criteria for local office interview is if the beneficiary is not working with the sponsor at the time of filing 485.

I believe you are taking the necessary correct steps to stay below the radar of uscis.

Hi UnitedNations,
You are awsome man. Please clarify the above things.
Thanks
KK