very important plz. reply

[javaxmlsoapdev]

If one joins company B invoking AC21, whose I-140 is approved and 485 is pending for more than 180 days. for some reason USCIS issues NOID or RFE on approved I-140 asking ability to pay or for some other reason, what would be the situation of the person who invoked AC21 to join company B. Is he safe under AC21 ? please reply. this is a serious matter happening with a friend of mine.

 

[pralay]

If one joins company B invoking AC21, whose I-140 is approved and 485 is pending for more than 180 days. for some reason USCIS issues NOID or RFE on approved I-140 asking ability to pay or for some other reason, what would be the situation of the person who invoked AC21 to join company B. Is he safe under AC21 ? please reply. this is a serious matter happening with a friend of mine.

As per new AC21 memo, new company's ability-to-pay is not an issue. However, original sponsorer's ablity-to-pay could be an issue if company's financial was not good when LC and I-140 was filed.

 

[javaxmlsoapdev]

pralay:- yes, original sponsorer's ability-to-pay is an issue as company can't prove financial requirements, which USCIS has asked for. But what if new employer (after invoking AC21) fulfills all these financial requirements. FYI:- this is a case where RFE is issued on already approved I-140.

 

[pralay]

pralay:- yes, original sponsorer's ability-to-pay is an issue as company can't prove financial requirements, which USCIS has asked for. But what if new employer (after invoking AC21) fulfills all these financial requirements. FYI:- this is a case where RFE is issued on already approved I-140.

No, new employer cannot "fulfill" financial requirement for old employer (original I-140 sponsorer). I-140 sponsorer must show ability-to-pay in its own. Without that, your I-140 is in trouble (even if it was approved already). If your I-140 is in trouble, there is no question of I-140 portability (AC21). You need to talk a good lawyer to deal with your situation. In addition, forum member "unitednation" handled with couple of ability-to-pay issues in past. You can contact or do a PM to him.

 

[fast_gc_seeker]

No, new employer cannot "fulfill" financial requirement for old employer (original I-140 sponsorer). I-140 sponsorer must show ability-to-pay in its own. Without that, your I-140 is in trouble (even if it was approved already). If your I-140 is in trouble, there is no question of I-140 portability (AC21). You need to talk a good lawyer to deal with your situation. In addition, forum member "unitednation" handled with couple of ability-to-pay issues in past. You can contact or do a PM to him.

If USCIS has questions on Ability To Pay they will ask these questions through RFE. If 140 is approved and person has invoked AC-21 then RFE should be on pending 485. Invoking AC-21 clearly informs USCIS that the 485 beneficiary does not wish to work with 140 petitioner so I doubt if they will have any questions ie RFE on approved 140 which means they will have Ability To Pay RFE on pending 485.

any comments gurus?

 

[pralay]

If USCIS has questions on Ability To Pay they will ask these questions through RFE. If 140 is approved and person has invoked AC-21 then RFE should be on pending 485. Invoking AC-21 clearly informs USCIS that the 485 beneficiary does not wish to work with 140 petitioner so I doubt if they will have any questions ie RFE on approved 140 which means they will have Ability To Pay RFE on pending 485.

any comments gurus?

May 2005 memo is pretty clear about it.
http://uscis.gov/graphics/lawsregs/handbook/AC21intrm051205.pdf

Ability-to-pay for AC21 employee is not an issue (see Q&A 7 in Part I). In addition, USCIS can revisit approved I-140 and check ability-to-pay for original I-140 sponsorer (it's not addressed in this memo though).
And 'javaxmlsoapdev's RFE on already approved I-140 proves that USCIS is revisiting I-140. Basically the thumb-rule is that "no good I-140, not portability (i.e. AC21)".

Check this posting:
http://immigrationportal.com/showthread.php?p=1236729#post1236729