Whom should I work for ?

K

koolkat

Registered Users (C)
I have a related question here. I filed labor thru company A and quit company A before labor approval and joined company B. But company A continued my labor & filed 140 followed by 485 ( as GC is for future employment). In the meanwhile I joined company C on EAD and company C filed AC21. I might get approval (if I'm lucky) soon. But I'm confused for which company should I have to work ( maybe atleast 6 months). Both the attornies are telling different things addition to my confusion. I hope someone have answer to this or probably have some experience on this.

Thanks
-Koolkat
WAC-02-119-#####

I'm not sure if USCIS has updated their records as my FP notice has been received by my old attorny.
 
Since company C is the one you filed AC21 for, then that's the company you should continue working for after you get your GC.
 
What I understood that you never worked for company A, after your LC approval. After approval, you can work for any of the companies (A or C) provided the job profiles are same (same job code), your A or C salary follows prevailing wage and you "intend" work for one of them "indefinitely". GC is future employment, therefore if you try to make it simple, you should work for company A after approval. On the other hand, issue is that, by filing AC21, you have already let USCIS know that you changed the job. That implies that you intend to work for company C. That's why I feel either of options is fine.
 
I second with gica, there is no confusion here. You can continue working with company C as you already filed AC21 with company C.
 
I go with working for Company A because otherwise the whole concept of intent is destroyed and you have a bad leg to stand on.
 
140_takes_4ever said:
I go with working for Company A because otherwise the whole concept of intent is destroyed and you have a bad leg to stand on.
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Yes, probably the safest bet is to join company A and file another AC21. However, I don't agree that whole intend will be destroyed if work for company C, because filing AC21 the applicant showed his intend to work for company C.
 
Still Confused ???

Is there any problem if I work for C or A. If I decide to go back to A, do I need to file AC21 again. I might be getting approval even before filing AC21. Do you know anyone in same situation. Its difficult decision.

Thank you all for your expert advices. You guys are great!!! ;) ;) ;)

-Koolkat
WAC-02-119-#####
 
140_takes_4ever said:
I go with working for Company A because otherwise the whole concept of intent is destroyed and you have a bad leg to stand on.
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I dont understand why one should go with Company A in this case. Its pretty clear that there is AC21 filed for Company C and there is no RFE or objection for CIS, that means, the AC21 is accepted. Once the AC21 is accepted then the CIS thinks the GC is being sponsored by Company C. In this case if the subject joins Company A then I think the CIS raise the intent issue.
 
The reason is that the only way koolkat is eligible to gain adjustee rights (including AC21), is because of "intent" to work for Company A after GC approval. Whereby, he makes a promise. Or atleast show intent.

If he never works for Company A, it implies that there was no "intent", whereby the petition is based upon a false premise. If koolkat actually worked for Company A before filing AC21 with Company C, this would be an issue, because it is a case of direct application of AC21. But due to the introduction of Company B in the midst, the logic falls apart.

As Bitterman used to say, be careful, be very careful. Or atleast words to those effects. What I am saying here is MY opinion, and reflects my very conservative approch to immigration. But offcourse feel free to disagree. :)

Koolkat,

A very difficult position to be in, but I don't think you have any cause to worry. That is unless you filed for AC21 under Company B. Even if you did that, someone has to actually put two and two together to make four. I would say you are home clean. But wanted to put forth the legal case of "What should be but usually isnt" for you to be aware off. Personally I like to know all the possibilities before making decision and assume that others prefer it too. For all practical purposes Rk4GC and pralay might be right, but I definitely believe that I am in the right as far as legality of the issue is concerned. :) So take the advise for what it is worth.
 
Whom should I contact ?

Who might be right person to answer this. Both of the attorny have different views. Even you guys have different views. Should I contact Rajiv about this?

Any thoughts are appreciated. Thanks to all of you to spend so much time.

-Koolkats
WAC-02-119-#####
 
140_takes_4ever said:
The reason is that the only way koolkat is eligible to gain adjustee rights (including AC21), is because of "intent" to work for Company A after GC approval. Whereby, he makes a promise. Or atleast show intent.

If he never works for Company A, it implies that there was no "intent", whereby the petition is based upon a false premise. If koolkat actually worked for Company A before filing AC21 with Company C, this would be an issue, because it is a case of direct application of AC21. But due to the introduction of Company B in the midst, the logic falls apart.

As Bitterman used to say, be careful, be very careful. Or atleast words to those effects. What I am saying here is MY opinion, and reflects my very conservative approch to immigration. But offcourse feel free to disagree. :)

Koolkat,

A very difficult position to be in, but I don't think you have any cause to worry. That is unless you filed for AC21 under Company B. Even if you did that, someone has to actually put two and two together to make four. I would say you are home clean. But wanted to put forth the legal case of "What should be but usually isnt" for you to be aware off. Personally I like to know all the possibilities before making decision and assume that others prefer it too. For all practical purposes Rk4GC and pralay might be right, but I definitely believe that I am in the right as far as legality of the issue is concerned. :) So take the advise for what it is worth.
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The person is not required to have worked for the GC-sponsoring employer prior to filing or obtaining the GC and can use AC21. :cool:

http://www.murthy.com/news/UDac21qa.html#3
 
koolkat said:
Sri4GC,

Does it mean that I don't need to work for company A?

Thank
-Koolkat
WAC-02-119-#####
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Yes. You are fine as long as you are employed according to AC21 rules, no threat to the US security, not a criminal and a good tax payer. Moreover, laws are made inherently ambiguous in the US to take advantage of the situation in question.

The whole idea behind INS/BCIS/USCIS GC process is to help non-immigrants become immgrants in a smooth fashion, as long as the case is clean, not to find faults or show intentions to deny somehow. Even if anything happens you can fight it out and get the verdict in your favor.

BTW where is the cat going for long weekend? :D Have fun.
 
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Regardless of whether a person needs to work or not for a sponsoring company, I find this hilarious:

Sri4GC:
The person is not required to have worked for the GC-sponsoring employer prior to filing or obtaining the GC and can use AC21.

Koolkat:
Does it mean that I don't need to work for company A?

Now either Koolkat, you do not understand English or you want someone to open your mouth stick one huge spoon inside, chew the food, and digest it for you as well. :)

Here is the quoted text from Murthy's website:
Question 2 : I lost my job before the 180-day period. Can I still use portability? TOP

Quite possibly, provided the I-485 remains in pending (unadjudicated) status for at least 180 days. It is the I-485 processing time that is important, not when the beneficiary changes positions. This is because the "green card" (GC) is based upon a future job offer. The person is not required to have worked for the GC-sponsoring employer prior to filing or obtaining the GC. Accordingly, it appears the AC21 law did not intend to change the prior law, which only requires a future job offer with respect to the GC sponsorship in employment-based cases. Please refer to the disclaimer at the end of this page, since, at the time of this writing, the regulations have not been published.



Question 3 : I never worked for my sponsoring employer. It was a future job offer. Can I use AC21 portability? TOP

Yes, under the same circumstances as Question 2.
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But once again, as you can see (from your own lawyer's advise) it is controversial and no one has definite answers. So it is totally up to you.
 
Sri4GC said:
Yes. Law is in favor of you.
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Not totally convinced by this argument. Not sure if the law is in favour or NOT, But definitely the chances are higher of getting away with it.

Here is Sheela's disclaimer:
Disclaimer : It is important to reiterate that there is a caveat to the responses to these FAQs: none of the present INS interpretations is binding on the agency when they finally issue regulations, although one may be protected for a reasonable and good-faith interpretation of the law. However, what is reasonable and in good faith is a matter of interpretation. Additionally, there is always the risk with portability that if INS approves or adjudicates the case within 180 days or less, the person would be required to work for the GC sponsor and could not benefit from the liberal language of AC21.
 
140_takes_4ever said:
Not totally convinced by this argument. Not sure if the law is in favour or NOT, But definitely the chances are higher of getting away with it.

Here is Sheela's disclaimer:
Disclaimer : It is important to reiterate that there is a caveat to the responses to these FAQs: none of the present INS interpretations is binding on the agency when they finally issue regulations, although one may be protected for a reasonable and good-faith interpretation of the law. However, what is reasonable and in good faith is a matter of interpretation. Additionally, there is always the risk with portability that if INS approves or adjudicates the case within 180 days or less, the person would be required to work for the GC sponsor and could not benefit from the liberal language of AC21.
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Yeah I agree with 140. I edited my previous post accordingly. All I mean to say is he is fine.
 
140_takes_4ever said:
Not totally convinced by this argument. Not sure if the law is in favour or NOT, But definitely the chances are higher of getting away with it.
[/b]
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Law is not favor of anybody. But just as a footnote: if any law, rule or document is ambiguous enough, in general the court verdict goes against the party who frames the law/rule/document. Now, that means in immigration court USCIS have to prove that the rule is not ambiguous. But you have to pour $$$ for your lawyer for immigration court.
 
my tuppence...

here's my take, FWIW:

employment-based GC is for a future job. the employer offering this future job is thus the sponsor of your immigration. your obligation as beneficiary of such sponsorship is to take up that future employment when your immigration benefit (i.e. GC) is approved. furthermore, throughout the pendency of your application, you should have the "intent" of taking up the job upon approval.

the introduction of AC-21 portability does *not* change this basic premise. what it does allow is for another employer to "inherit" your sponsorship from your original sponsor, thus also assuming the ownership of the future job that was the basis of your immigration. this also explains why the job under the new sponsor must match the proffered job under the old sponsor.

i can now elaborate what i meant by my earlier statement that AC-21 portability does change the basic premise of employment-based immigration: your intent was, and always had been, to work for your sponsoring employer. under AC-21, your sponsoring employer would be the one who was on record *at the time of approval* of your GC. the fact that the sponsoring employer at the time of approval was other than the original sponsor of the LC and i140 is incidental (and legal after AC-21); you are still expected to work for your final sponsor.

in your case, it would be company C.

i guess the AC-21 portability could also be stated thus: "the king is dead. long live the king."
 
Pork Chop said:
here's my take, FWIW:

employment-based GC is for a future job. the employer offering this future job is thus the sponsor of your immigration. your obligation as beneficiary of such sponsorship is to take up that future employment when your immigration benefit (i.e. GC) is approved. furthermore, throughout the pendency of your application, you should have the "intent" of taking up the job upon approval.

the introduction of AC-21 portability does *not* change this basic premise. what it does allow is for another employer to "inherit" your sponsorship from your original sponsor, thus also assuming the ownership of the future job that was the basis of your immigration. this also explains why the job under the new sponsor must match the proffered job under the old sponsor.

i can now elaborate what i meant by my earlier statement that AC-21 portability does change the basic premise of employment-based immigration: your intent was, and always had been, to work for your sponsoring employer. under AC-21, your sponsoring employer would be the one who was on record *at the time of approval* of your GC. the fact that the sponsoring employer at the time of approval was other than the original sponsor of the LC and i140 is incidental (and legal after AC-21); you are still expected to work for your final sponsor.

in your case, it would be company C.

i guess the AC-21 portability could also be stated thus: "the king is dead. long live the king."
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Well said. Its the best explanation I've ever seen that supports my argument :)
 
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