Your Advice Please

S

siddiboy

Registered Users (C)
I work for company B on H1B . Company A is doing my Green card process. I have never worked for company A. My I485 is Pending for 180 days with Company A (Currently transferred to TSC).My I140 is approved recently fro TSC.

Now i have Offer from Company C who is willing to recruit me if i can join with EAD. Currently i am on H1B with company B.

Question

1. Can i join the Company C with EAD ? If yes how?

2. Since my i have never worked for GC sponsering employer (company A) what are the precautionary measures i should be aware of?

3. Should i join Company A at some point ? If yes when ?

Thanks in advance for your answers.
 
siddiboy said:
I work for company B on H1B . Company A is doing my Green card process. I have never worked for company A. My I485 is Pending for 180 days with Company A (Currently transferred to TSC).My I140 is approved recently fro TSC.
---------------- your I-140 approved and I-485 pending more than 180 days makes you eligible to use AC21
Now i have Offer from Company C who is willing to recruit me if i can join with EAD. Currently i am on H1B with company B.
------------------ request if they can trassfer H1, H1 is better if anything goes wrong with I-485. you can join with EAD that is upto you. also ask them if they are ready to give you letter of PERMANENT job offer with same/similar job duties so that you can invoke AC21
Question

1. Can i join the Company C with EAD ? If yes how?
---------- you can join with EAD or with H1 transfer(better option for you)
2. Since my i have never worked for GC sponsering employer (company A) what are the precautionary measures i should be aware of?
----------- GC is for future job , not working with A will not be problem if you invoke AC21
3. Should i join Company A at some point ? If yes when ?
--------- if you send AC21 of B or C to the service center where I-485 is pending then your I-485 will be approved based on LATEST permanent job offer letter of B or C and if it is approved for B then work with B after GC if approved for C then have to work with C after GC if you dont invoke AC21 and the job offer letter with your pending I-485 is ONLY from A then only you need to work with A
Thanks in advance for your answers.
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Ginnu,

I am also in the same situation, but I got different response/reply from attorneys, I even contacted Rajeev S Khanna and other leading NJ based attorneys.

They are clearly saying, AC21 is for transfer of supporting petition from working employer to another employer(who I am willing to). If we would have work for company A atleast 6 months, we wouldn't have any problem.
As per them, this case is not covered under AC21.
They are suggested me keep work on H1B until Company B or C. And keep the intension of work for company A once I get the green card.

I don't know what to do here? your insights are completely different. I am scratching my head :mad:

Please let me know if you know any good attorney who made thissuccessfully in the past.
I really appreciate your help and insights.
 
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LaborBadhi said:
Ginnu,

I am also in the same situation, but I got different response/reply from attorneys, I even contacted Rajeev S Khanna and other leading NJ based attorneys.

They are clearly saying, AC21 is for transfer of supporting petition from working employer to another employer(who I am willing to). If we would have work for company A atleast 6 months, we wouldn't have any problem.

---------------" While the intent to work for the petitioning employer is a requirement for approval of I-485, there is no legal requirement that beneficiary of approved employment based visa petition work for the sponsoring employer before receiving permanent residence status" ( Michael A.Pearson Memo dated May-9 2000, page 2 second para)

Read the AC21 MEMO 2003:
http://www.usavisanow.com/8-13-03-140-485.pdf
Please read the page 3 last paragraph



.


As per them, this case is not covered under AC21.
They are suggested me keep work on H1B until Company B or C. And keep the intension of work for company A once I get the green card.

I don't know what to do here? your insights are completely different. I am scratching my head :mad:
----------- employer need the intention of hiring for permanent job at the time of Filing I-140 and you intend to work with employer at the time of filing I-485 based on that I-140 or with that I-140 and you can change the intent and AC21 covers you. I dont know your full case details. Read the above posed link of AC21 Memo 2003

Please let me know if you know any good attorney who made thissuccessfully in the past.
--many have done this. you can contact Lady lawyer in Baltimore
I really appreciate your help and insights.
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Though law says GC job is a "future job", if USCIS found that any one never worked for sponsered employer during the lengthy waiting period, and has a history of bouncing jobs using EAD, it will lead to the severe doubt in credibility of both the employer and employee about their "intension of true employment relationship". It will definitly leads to the concusion of fraud.

In USCIS opinion, the this practice can be a "fraud" . This is because, the GC sponsering employer searching for a person to undertake the job immidiatly, before filing labor certification. This implies that there is a immediate job opening. If employee does not undertake that job and jumping so many jobs without joining the sponsered employer leads to the conclusion of failure of intension of employment relationship and employer-employee practicing fradulant GC sponsership.

Therefore, all the lawyers are right.
 
Ok?

can_card said:
Though law says GC job is a "future job", if USCIS found that any one never worked for sponsered employer during the lengthy waiting period, and has a history of bouncing jobs using EAD, it will lead to the severe doubt in credibility of both the employer and employee about their "intension of true employment relationship". It will definitly leads to the concusion of fraud.

In USCIS opinion, the this practice can be a "fraud" . This is because, the GC sponsering employer searching for a person to undertake the job immidiatly, before filing labor certification. This implies that there is a immediate job opening. If employee does not undertake that job and jumping so many jobs without joining the sponsered employer leads to the conclusion of failure of intension of employment relationship and employer-employee practicing fradulant GC sponsership.

Therefore, all the lawyers are right.
Click to expand...

OK? But if the sponsoring company is not able to show the job now and not able to put me in job after approval of GC?
What happens in this situation?
They are asking me to find the jobs.
 
LaborBadhi said:
OK? But if the sponsoring company is not able to show the job now and not able to put me in job after approval of GC?
What happens in this situation?
They are asking me to find the jobs.
Click to expand...

"They are asking me to find the jobs"..

This clearly tells that they do not have bonafide job offer for you, based on that they can sponser LC,140 etc..
This means that they did fraud in sponsering green card for a job that does not exist. You have to consult with good attorney.
 
ginnu said:
http://www.usavisanow.com/8-13-03-140-485.pdf
read page 3
Click to expand...

Second Para says that one never worked for GC sponsered employer may use the AC21. It is a liberal stand and it controvercial. There is no same or similar job change untill he works for (GC sponsering employe), the job, for which LC and I-40 was filled. How does USCIS knows he changed the same or similar job, if never worked for the job as mentioned in LC or I-140?

Though it is a liberal stand (as per this memo..moreover still it is a old memo not regulation) , the main purpose of AC21 is to give job flexibility from during the lengthy waiting period, with the assumption that he is porting job from GC sponsered employer. This provision was introduced as because, before year 2000, one could not change job untill his I485 was approved. Before AC21, if any one changes the GC sponsered employer before I-485 was approced the GC was cancelled. That is the reason for introduction of AC21 in the law.

Theoritically, one can work in pizza hut in EAD, then switchs job to burger king and again jump to another restraunt, before the approval of I-485. Once he gets GC (after I-485 approval) he can go and join the GC sponsered employer and work as a software engineer. This is theorically valid and legal, because GC is a future job. If he changes jobs like that, how does it matches with the he ported the job same or similar to I-140 was filled? Therefore AC21 will not come in to play in this case. At the same time there is a potential denial of 485 becase his job history is not consistant.

One can make use of the above provision in that memo. They need to go with an attorney who is so "comfortable" and aggressive in recommending that.
 
can_card said:
"They are asking me to find the jobs"..

This clearly tells that they do not have bonafide job offer for you, based on that they can sponser LC,140 etc..
This means that they did fraud in sponsering green card for a job that does not exist. You have to consult with good attorney.
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OK. Most Desi company's do that....

But what happens if some one falls in following scenario?

If the sponsoring company is not able to show the job now and not able to put in a job after approval of GC?

Also, what heppens if the company A(sponsered company) sold out?
 
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LaborBadhi said:
OK. Most Desi company's do that.... That means they are doing fradulant GC sponsership.

But what happens if some one falls in following scenario?

If the sponsoring company is not able to show the job now and not able to put in a job after approval of GC? - This is clearly tells that there is no job offer. In order to obey legal system, you MUST work for them upon approval of your 485.

Also, what heppens if the company A(sponsered company) sold out?
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can_card said:
How does USCIS knows he changed the same or similar job, if never worked for the job as mentioned in LC or I-140?
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When you tell USCIS. There's clearly no requirement to ever be employed by the petitioning employer in order to invoke AC21.

Though it is a liberal stand (as per this memo..moreover still it is a old memo not regulation) , the main purpose of AC21 is to give job flexibility from during the lengthy waiting period, with the assumption that he is porting job from GC sponsered employer.
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That's not only an assumption, it is a fact. However, the offered job in the LC does NOT need to be the alien's current job. Each current job claimed by the alien when requesting AC21 relief is compared to the LC for the purposes of "same or similar"; wether the alien ever worked for the GC petitioner is irrelevant, although USCIS may legitimately use this fact to question the alien's original intent.

While you are correct in stating this is a memorandum, USCIS and INS have been consistent since 2001 (a half-decade now) in not requiring the alien to work for the petitioning employer. It's not a "liberal" stand by any means.
 
My simple question to real canadian ..

The AC21 talks about porting job from job A (or employer A)to job B (or employer B). Please tell me what USCIS is refering the job A or Employer A?

The job A or Employer A is the the job for which LC or I-140 was filed. If any one does not work for employer A, AC21 rule will not apply for them or their job changes during the GC process. AC21 applies only if any one port from I-140 job to other similar job. This is situation 1

However, as I mentioned earlier, one need not work for the GC sponsered emploer till I-485 approved. Also, I agree that LC job is totally the future job.However, employee MUST work for GC sponserer upon approval of 485. This is situation 2. There is no AC21 involved in this process. These two are different situations. Guys! do not confuse with two different situations.
 
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can_card said:
The AC21 talks about porting job from job A (or employer A)to job B (or employer B). Please tell me what USCIS is refering the job A or Employer A?
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They're referring to the LC job.

The job A or Employer A is the the job for which LC or I-140 was filed. If any one does not work for employer A, AC21 rule will not apply for them or their job changes during the GC process. AC21 applies only if any one port from I-140 job to other similar job.
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That's an opinion totally supported by any law, statute or regulation. In fact, all of the INS and USCIS memoranda have initially been silent on the subject, and then explicitly refuted this claim.

So long as the LC job was bona fida and the alien intended to take it up after permanent residency was applied, the fact that the alien worked for (or didn't work for) the petitioner in a non-immigrant capacity is irrelevant. It may assist in determining intent and ability to pay, but that's about it.
 
TheRealCanadian said:
So long as the LC job was bona fida and the alien intended to take it up after permanent residency was applied, the fact that the alien worked for (or didn't work for) the petitioner in a non-immigrant capacity is irrelevant. It may assist in determining intent and ability to pay, but that's about it.
Click to expand...

Technically speaking, if a person never joins GC sponsoring company on H/L Visa, or after getting EAD or after getting GC, USCIS can legally hold it against that person that there was never any intension to join GC sponsoring employer. They might do it when one applys for Citizenship and even strip that person's GC. Seems far fetched, but legally, USCIS can do it.
 
Well said

TheRealCanadian said:
They're referring to the LC job.



That's an opinion totally supported by any law, statute or regulation. In fact, all of the INS and USCIS memoranda have initially been silent on the subject, and then explicitly refuted this claim.

So long as the LC job was bona fida and the alien intended to take it up after permanent residency was applied, the fact that the alien worked for (or didn't work for) the petitioner in a non-immigrant capacity is irrelevant. It may assist in determining intent and ability to pay, but that's about it.
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Hi TheRealCanadian,

Well said! Your answers are matching exactly with leading USA attorney's. I have contacted both of the leading attorneys(DC&Baltimore) and their answers are matching 100% with T.R.Canadian and ginnu responses.

Thanks! a lot guys! Greatley appreciated!!!

Regards,
LB
 
Invoking AC21

I had a talk with lawyer . He told it is perfectly valid to invoke AC21 even though i haven't worked for the sponsering company. I asked him "what if USCIS questions about not joining the sponsering employer"

He replied that i can always let them know that i joined New company as the LAW (AC21) allowed me to join.

I am going to ask one more lawyer.

In the mean time if any one else can get one more opinion with some other law firm , it would help lot of people with similar issue.
 
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