Wording of AC21: Type of new employment

R

Rastamandrum

Registered Users (C)
Hi everyone,
I am in a very frustrating situation that I would like to share with you. I am a pending I-485 applicant (RD: Sept'2001). My finger printing is next month and I hope for a decision on the GC soon after. I am currently still employed by the company that sponsored me and am working on my EAD at a client.
My employer is a fairly large IT company ( went public a couple of years ago). However it has been having severe financial problems and our salaries have been delayed or pending and paid late for the past year (all of these are of course illegal).
Now the situation has gotten worse. They stopped the insurance premiums for health claiming inability to pay (which is ridiculous since we have the premiums deducted from our checks ...so we are the ones paying the premiums to begin with). All of this may sound familiar to you as hundreds of companies have gone through this in the past couple years. But there is one BIG DIFFERENCE: Our company has a very lean bench and 90% of the consultants are on project even at this time (the rest were let go over the past year). I have never been out of work for the past 4 years or so that I have been with them.
So the question becomes "What are they doing with the money that they are collecting?" Anyway they have consistently lied to us for the past year and have behaved in a most unprofessional way.

Here is my present scenario:
My client has given me a two month extension (Sept,Oct'2002)
and I would like to see if I can direct bill with them (I have an EAD). I looked at the wording of AC21 carefully....I know it talks about "similar job blah blah blah"... but nowhere does it say we have to be salaried employee of the new company. Why cant I do a 1099 (contract ) with the client??
In addition I have stayed with my sponsor company well passed the 180 day limit (almost a year now) and does this not show that we had "good faith intent" to stay with them despite their fraudulent behaviour???
Finally wont the INS give some consideration to the fact that we have not been paid for the past three months even though we are billing at a client. After all do they expect to live on air???? I mean this in the context of why I left the company...

I would sincerely appreciate your thoughts on the matter as I have to make some type of decision soon.

Kind regards
Rastamandrum
:confused:
 
Rastamandrum

After all these details, you haven't clarified ('intent'?) whether you want to join the client as a full time employee or want to work there as a consultant and get paid on 1099?

While trying to read into AC21, don't forget that the whole EB application is based on that 'EB' - employment based. The 1099 option makes you self-employed which is not applicable here.

You should have a FULL TIME PERMANENT job in order to apply for the GC under EB category. AC21 just gives you an option to switch the employer. So, if you want to leave the present co., just make sure that the new co. (client) is willing to employ you in a full time permanent position (no contract work). If this is not possible, you have to stay with the present co., no matter how they behave. It is a different area whether the practice they are following is legal or not. You may inform DOL, and INS about that, but has nothing to do with AC21.

BTW, the medical insurance premium which you pay is not a full premium. Usually it is a part of the premium. The major part is normally paid by (good) employers. Providing medical insurance is not mandatory, it is just a benefit, and employer can cancel or change that benefit.
 
Thanks immi007,
You have made some very valid points. My point is that I am continuing to show intent to work for my sponsor but they are making it nearly impossible since they are not making timely payments etc...The interesting thing is that they are not terminating us (since we are providing them a revenue) but are indulging in these stalling tactics. You guessed correctly that I am in two minds about joining the client on a permanent basis (many reasons....over qualified etc...). I am of course looking around for other permanent jobs etc but since I am soo close I might just stick with the BS a little while longer....
With regard to the health insurance I am agreement that they have a right to terminate it at will...the problem is that they never officially informed us but just let the payments lapse...many of my colleagues found out only when they showed up at a doctor's office for treatment!!!! Not the way I expect a publically traded company to behave....but then after ENRON and WORLDCOM ...I guess I shouldn't be surprised. Anyway, thanks again for the input.
 
after and before Approval

If you are thinking to switch (and there all valid reasons to do so), better sooner than later.
Since you are approaching the approval fast, there is not much time left, but you have the client as a potential option.

The reason for stressing the change is after the approval the rules of the game will be different, and the AC21 will not be applicable (since there is nothing pending). In that case, you will have to work for the sponsor (ideally) forever (practically, at least for a year).
 
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Work for sponsoring company for one year

How does INS count the one year? From I-140 AD or I-485 AD?
 
Actually I do not think there is any prescribed number in the law with regard to how long one needs to stay with the sponsor. I have heard periods of 6 months, 1 year etc being suggested. The question is "how would INS verify or enforce this?" One possibility is that your sponsor is "vindictive" and informs the INS subsequent to your departure. The other possibility is when you apply for citizenship and you have to divulge your history. In the past I do not believe enforcing this was a priority for the INS. Of course after 9/11 everything has changed. In my case I am not too concerned since my sponsor has been indulging in a panoply of questionable and in many cases illegal activities.... I do not think they are in a position to complain!!!!
 
1 yr count

from 485 AD...
I am not sure that INS is serious only after 911 regarding proof of intent. I have seen GC holders encountering problems because they left sponsoring employers before 6 months..
Post AC21 is a different dimension of course...
 
jaxen,
I would very interested to know under what circumstances INS went after people for leaving their employer. Did the employer create the problem by complaining to INS or did this come to light during the citizenship application process...or did they find out in some other way...any details would be appreciated.
 
3 cases

For 2 of them citizenship was denied . However residentship was not revoked. They will be renewing their residency in the next 2 years.

The third was one of the new crop of permanent residents who completed 10 years last year, extension of residentship was granted after a MTR / appeal.

In all these cases, they had to give employment history and the interviewing officer found from the evidence presented that they were no longer with their sponsoring employer all of them within 6 months from GC approval.

I have also heard of people being deported a few years ago for changing employer before 6 months and apparently the employer wrote a letter to INS at the time of citizenship application. hard to believe and am unable to confirm.

For this miniscule number of problematic extensions there are many who have jumped the ship and have gotten away with it. Dunno whether they lied or INS authorities ignored the evidence...
 
Jaxen,
Thanks for the details. I agree that statistically, most people seem to get away with shifting. I have numerous relatives and friends who have done this and subsequently went on to get their citizenship. On the other hand the cases you have pointed out cannot be discounted. This is the most frustrating thing about the INS...the lack of uniformity!!!!!!
 
Hi Rastamandrum,

I have another idea for you, why your dependent start consulting company (with EAD, I belive you can start business) and do 1099 contract with your client and hire you as employee. and that way you can change job under AC21, becuase you are still doing same job. I am not lawyer, but I think it won't be bad idea to check with your Lawyer or any good lawyer.

From Web I read somewhere If you leave job after greencard in two year, it's your responsibilty to prove to INS your good intend, but if you leave your employee after two year it's INS responsbility to prove you didn't have good intend for continue the employment. But thngs are very subjective and after AC21 ruling and scam from all the big company like Enron, Wordcom or DOT com colapse. Two year is very very long time. may be it's not relavent at all.

I hope this will help.

JB:)
 
jbm,
Thanks for the suggestion. I will look into it. One point needs to be made. We may find a clever and legal way (such as the one you suggested) but during adjudication the officer may conclude that the purpose of the company was merely to obtain the GC and this brings into question the so called "good faith intention" that is part of the GC process. Anyway it is worth researching.
 
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