What is this on AC21? Now we should file AC21

[Elias]

Hi Guys,
I was reading murthy chat site and found below question. What is the meaning of "There is a separate risk that, even if the USCIS approves the I-140 petition, the person could end up being subject to having the GC rescinded after the I-485 approval if one fails to file the AC21 with the USCIS. ".......?

After reading this I came to conclusion that "Even when you 485 got approved, Since you did't file AC21 they may revoke your GC."

Is this right????


--------------------- Chat clip ---------------------------------------

Chat User : Can AC21 be used on a labor substituted case?

Attorney Murthy : Under the current reading of the law, a person whose I-140 has been approved and whose I-485 has been pending for over 180 days should be able to take advantage of AC21 portability since the law itself does not contain any restriction for labor substituted cases. The USCIS has been issuing the original LC filing date as the priority date when approving the new I-140 petition for the substituted person. There is a separate risk that, even if the USCIS approves the I-140 petition, the person could end up being subject to having the GC rescinded after the I-485 approval if one fails to file the AC21 with the USCIS.

 

[curiousGeorge]

Basically if you lied (i.e. you didn't file AC21) then your GC could potentially be revoked because it was obtained fraudulently.

 

[TheRealCanadian]

Basically if you lied (i.e. you didn't file AC21) then your GC could potentially be revoked because it was obtained fraudulently.

Since USCIS in their AC21 memorandums explicitly state that the alien is not required to notify USCIS when a job is changed, to call inaction a lie or fraud is a huge stretch.

 

[sb_gc]

Basically if you lied (i.e. you didn't file AC21) then your GC could potentially be revoked because it was obtained fraudulently.

How can you infer that by not filing AC21, a person has lied ?
How can you lie by not saying or submitting anything?

According to the William Yates memo, August 8, 2003, (hope it is still valid!!),
it is expected that the person would have submitted evidence that the new offer is in the same or similar occupation......

Nowhere it says that it is required.

And where does AC21 come into picture after you get the 485 approval.

As I understand, AC21 is only before 485 approval after 6 months of 485 submission and 140 approval.

 

[MD_Rockville]

As I understand, AC21 is only before 485 approval after 6 months of 485 submission and 140 approval.

i would like to add that if you are laid off ( w/o approved 140 and > 180 days of pending 485 )..then you still may get approval after filing AC21..

 

[curiousGeorge]

Since USCIS in their AC21 memorandums explicitly state that the alien is not required to notify USCIS when a job is changed, to call inaction a lie or fraud is a huge stretch.

Point taken.

Then how do you define what Murthy is describing? If its not a lie, then wouldn't this be considered abstruction of justice, by not disclosing the current state of affairs concerning your case? Call it what you wish. Murthy is saying you need to file an AC21 if you changed jobs, or you could one day lose your green card for what you did, regardless of the semantics of whether its considered a lie or anything else you want to use to descibe the action.

"even if the USCIS approves the I-140 petition, the person could end up being subject to having the GC rescinded after the I-485 approval if one fails to file the AC21 with the USCIS"

 

[rich_kennedy]

Ac21

Hello
I changed jobs after 6 months of filing 140/485 concurrently.Recently my 140 and 485 were both approved.
Should I file AC21 now?
From what I read on the murthy post the problem arose when the original petitioner revoked the I140 for the particular employee and for whom the 485 was still pending. The USCIS memo came after the approval of the 485, but the employer had filed the revokation with the USCIS earlier.
So only if the original employer files for such a procedure would this situation arise.
Is this not correct or is my interpretation of the posted article wrong?
How would the USCIS know unless the original petitioner notifies them?
In my case I got my 140 / 485 approvals within a week of each other and could never file for the AC21.
More thoughts on this would be great.
Cheers
Rich

 

[NVC]

Guy's ..

I think what "Elias" is trying to clarify is that ..

If one has an approved 485 and decides to leave the current employer ..does he need to file AC21 ?..
Murthy's comments seem to be unclear ..
Is she talking about an employee who
Case 1)
has his/her 140 cleared ...
then left his/her employer and joined a new employer
then got his/her 485 approved..
then got his/her 140 revoked by previous employer..
then got his/her 485 rescinded...

or is she talking about an employee who
case 2)
has his/her 140 cleared ...
then got his/her 485 approved..
then left his/her employer and joined a new employer
then got his/her previously approved 140 revoked by previous employer..
then got his/her previously approved 485 rescinded...


If she is talking about Case 1 then .. I guess who ever plans to leave the current employer before his/her 485 gets cleared should file AC21 ( Voluntarily or after he/she receives an RFE) ..which I think everybody is aware of ..
BUT ..If she is talking about Case 2 .. then ..its scary ..because even after you get your GC you still remain at the mercy of your employer who filed your 140 ...
And I hope she is not talking about Case 2.

NVC

 

[MD_Rockville]

IMHO..if employer is not revoking 140 then there is no point filing AC21..

Notice of Intent to Rescind (NOIR) case that Murthy has described meets this criteria..

I remember Murthy suggesting to delay AC21 filings till RFE is issued..as a barcode is associated with RFE and your papers ( & AC21 ) goes to your file. .to add I know 10+
People personally who never filed AC21..all got approved without RFE..


If you send AC21 docs, there is no guarantee that it is going to be attached to your file..

At last AC21 memo says that applicant is expected to file ( not required to file )

 

[sb_gc]

IMHO..if employer is not revoking 140 then there is no point filing AC21..

My opinion on this is how can we be so sure that the previous employer won't revoke 140. Even if the previous employer gives it in writing or confirms verbally, we cannot be 100% sure bcos later he might change his mind and try to get back at you by revoking 140 and use labor for somebody else and make money. Never trust your old employer !

Notice of Intent to Rescind (NOIR) case that Murthy has described meets this criteria..

I remember Murthy suggesting to delay AC21 filings till RFE is issued..as a barcode is associated with RFE and your papers ( & AC21 ) goes to your file. .to add I know 10+
People personally who never filed AC21..all got approved without RFE..


If you send AC21 docs, there is no guarantee that it is going to be attached to your file..

At last AC21 memo says that applicant is expected to file ( not required to file )

Yes, we have seen many cases that by filing AC21 before getting the RFE or NOID, still the papers are not attached to your case. What I am doing is I am filing the AC21 papers before changing to the new employer, and if I get the RFE or NOID, my lawyer will do it again. I am doing it taking a chance of 50-50 that USCIS will attach it to my case and if not, I/new lawyer will do it again.

 

[dbwr]

If we are not sure our AC21 papers are not going to get attached, Does it harm if we send it multiple times..

The day you joined other company AC21, Employer letter ....etc.....
After getting the first pay check with AC21, Employer letter ....etc.....
After getting the second pay check AC21, Employer letter ....etc.....
.............

In that cases probability of chances to have AC21 attached to you file is higher.....

 

[MD_Rockville]

The day you joined other company AC21, Employer letter ....etc.....

I will do that only when I have been upfront notified by my company that they are going to revoke my 140..note that pay stubs are not required to file AC21..

if at all I want to proactively file AC21 ( everything else being normal ) then i will wait for 3 pay stubs..

 

[ZipZapZoom]

to file AC21 or not? RFE on I485 for current employment letter

Hi Gurus,
Here are my details.
I140 and I485 filed concurrently with employer A (used labor subst.)
After 9 months, I140 was approved.
Left Employer A and joined Employer B in similar position.
Hired personal attorney.
Requested to file AC21 - attorney said "not required". We will see....
3 months later, RFE issued to provide Employment letter.
Sent letter from Employer B with 2 paystubs.
Again asked attorney if AC21 should also be sent. said "not required unless asked for. lets go by the RFE and send only that"

My question is: my attorney says that AC21 is not required to be filed unless specifically asked.
Should I insist on him filing the AC21 or should I just wait?
Gurus, please guide and share your experiences.
Much appreciated,
zipzapzoom

 

[rich_kennedy]

Ac21

The lawyer might be right. There is no harm in proactively filing Ac21 but I do not think it helps. You will probably get a RFE requesting employement verification. At that time you would still be eligible to use the AC21 benefits.

I have seen too many cases of people filing AC21 and still getting a RFE since USCIS did not tie the AC21 to the case.

I think AC21 should be used on a need be basis.

Cheers

Rich

 

[commander]

I’ll interpret Murthy’s case like this-
The rule is “You should always file AC21 if you change the job while you are in AOS status. In other words you must ensure that the AC21 is in file, in case job change is done during AOS.” (Of course you do not have to worry after getting green card.)
Certainly it is not required to file AC21 moment you change the job, and can wait for RFE or NOID for any reason, and can file AC21 during any time of your case. But in case you do not get NOID, and get 485 approved, that is the problem. You may think that you have made it, but legally, you canceled some information from CIS and that is what can cause rescinding of Green card.
Therefore it is always a good idea to file AC21 as soon as you change the job. Send the same set of papers as many times as required. It is tricky when one is laid off. In that situation you do not have any option but to take chance, as the person do not have new job for AC21 purpose.

 

[canus_immi]

I didn't unserstand the concept.

Please give me honest answer .

Suppose after 140 is approved then if they file 485, before 180 days if they lay off or asked us go (no lette had given). Defently we have to search for the new job in case you get an RFE you can use AC21 . But new lawyer said dont send any AC21 documents , So we waited for RFE. fortunately without any hassles they approved our GC Is there any chances for GC rescinding ?

thanks

 

[MD_Rockville]

therefore it is always a good idea to file AC21 as soon as you change the job. Send the same set of papers as many times as required. It is tricky when one is laid off. In that situation you do not have any option but to take chance, as the person do not have new job for AC21 purpose.

if you change job and send AC21 or you change lawyer.. you are inviting an RFE..

if you read AC21 memo, it clearly says that applicant is expected to file.. not filing is not about lying.. do not think are people who passed the law in senate are foolish people.. there was no harm to add than if you do not inform then 485 will be denied..

if you work for 180 days..( after 140 approved )..you have established a good faith intent to work for the sponsoring employer ..AC21 is to unblock the career opportunities 'coz of USCIS / FBI / Who Else delays. so if there is a similar job then go for it..

I have been following Murthy.com for more than 1 year.. if there is 1 NOIR among 100,00 cases then you may present that as law.. the call is upon you to figure out the right and wrong..

http://www.murthy.com/news/n_risres.html

Moreover, notification and proof of AC21 eligibility may be vital to avoid NOIRs in future cases ( last line of second last para ) read this line of bulletin to know that AC21 eligibility can also be used to refute NOIR..understand the language of star lawyer..

to me if I am eligibile to file AC21 ( 140 approved + 180 days ) I would not worry about these

 

[sb_gc]

if you change job and send AC21 or you change lawyer.. you are inviting an RFE..

Otherwise, you are inviting a NOID (with 30 days to respond) if the employer revokes the 140.

So, basically it's your take whether you like the RFE or NOID !!

To add:
The scenario of doing MTR if USCIS outrightly rejects the 485 . Man, will this ever end ???

 

[MD_Rockville]

Otherwise, you are inviting a NOID (with 30 days to respond) if the employer revokes the 140.

if you know that employer is going to revoke 140 proactively filing AC21 can save NOID ( and related stress )..i have always said that..

but if employer is not going to revoke 140 ( note that there is no law that forcre the employer to notify about 140 status ) ..AND you qualify for AC21..then sleep with smile..

IMHO you should monitor 140 status as well in USCIS profile if you suspect 140 revocation / RFE after 140 approval..

sb_gc..there is no end of this my friend, RFE / NOID / NOIR / AC21

 

[GC_quoi]

if you change job and send AC21 or you change lawyer.. you are inviting an RFE..

I believe MD_Rockville is correct. I changed lawyer late last December, and I got REF Jan 10th for EVL, pay stubs and tax returns. My new company (I changed job in Sept. after I140 approved in May) atterney told me they should be able to approve my case after they receive these. He didn't even mention we need to file AC 21 ...I am hoping for an approval soon. Gurus, will there be any new issues?