Originally posted by mendieta
Gracias Jharkhandi
But then what we need is NOT a change on AC21, but a change on how the I140 is handled. That is: whenever you change employer invoking AC21, you should be able to file some relevant information on your new employer, so that the new RFE goes to the new employer ... maybe it is hard to implement. But clearly there is no change needed on the AC21 itself methinks ...
Yes -- what you are suggesting is basically that the I-140 should become portable after xxx days of not being adjucated (which is the same thing that I've been "pushing" for and the same thing more or less that murthy points out in the article that I referred to earlier).
It's not sufficient to assume that the old sponsor can/will respond to any RFE's since:
+they might want to revoke the I-140 so they can use the LC with someone else
+they might revoke it because you left on bad terms
+they might go out of business
+they might revoke it by mistake (apparently this happens -- employers want to inform the USCIS of, say, a change to someone's H status and they end up revoking their I-140 instead)
Making the I-140 portable after xxx days probably would be best handled by amending / clarifying the existing AC21 guidelines though. The new company would basically take over the I-140 by filing for a change of sponsor under AC21. The job would still need to be similar to the original one and the company would still have to show the ability to pay the employee at the necessary rate.
And, BTW, there have been bulletins (e.g. from the TSC I believe) that clearly stated that AC21 can't be used until the I-140 is approved (even though this is somewhat vague in AC21 itself). What some people have done apparently is to wait until the I-140 does get approved (either because there is no RFE or because the original sponsor handles these) then used AC21. In some cases, people have avoided starting work with a new employer until the I-140 went through , in other cases they've started work with a new sponsor even while the I-140 was still pending (I don't think it should matter since the GC is for a future position anyway). Either way, one could argue IMO that if this is borderline fraud since the original sponsor is continuing to imply that they are ready, willing, able to hire the employee once the green card is obtained which often isn't the case.
Again, this is all speculative / wishful thinking at this point but as long as people are having to wait 3+ years it would make sense to change AC21 so that people don't have to put their lives on hold during the entire process.
ETA