To AC21 Or Not To AC21? - That Is The Question

[Newbie2009]

Hi All,
I have a question regarding AC21. Please move it to the appropriate thread if needed. I am in eb2 category, labor, 140 approved, 485 filed back in Feb 2012, have ead, using h1 (which expires in 2016) and working for the same company for which the above have been filed since 5 yrs. If I decide to move to a new company on h1, apart from my job duties and responsibilities being the same as also the job title (in the new company), do I still need to file an AC21? Or is the AC21 only applicable if I use my EAD in the new company?

Please advise.

[pdfeb09]

Hi All,
I have a question regarding AC21. Please move it to the appropriate thread if needed. I am in eb2 category, labor, 140 approved, 485 filed back in Feb 2012, have ead, using h1 (which expires in 2016) and working for the same company for which the above have been filed since 5 yrs. If I decide to move to a new company on h1, apart from my job duties and responsibilities being the same as also the job title (in the new company), do I still need to file an AC21? Or is the AC21 only applicable if I use my EAD in the new company?

Please advise.

Newbie2009,

From what I understand, the only scenario where you do not have to file AC21 is when you plan to go work for your petitioning employer after you get your GC. In such a case, you must be in a position to get an EVL from your petitioning employer if and when the USCIS demands it. Unless you are going to be able to do both these things, you must submit an AC21.

AC21 updates the records with the USCIS so that, when the time comes to validate your employement, you can provide a letter from your current(different from the petitioning) employer and USCIS will be fine with it. Without AC21, USCIS will expect a letter from your petitioning employer.

It does not mean they will deny your petition right away, but it could be a potential issue. I suggest go with AC21.

Disclaimer: This is not a legal advice. You must consult your own attorney.

[qesehmk]

In addition to what pdfeb said - from what I know - there is no such requirement that one MUST file AC21. AC21 is a provision by which a candidate can change jobs without hurting the green card processing. It is meant more for adjudicating officer than for the candidate. So it might not be a bad idea to switch and then wait and watch for an RFE. If and when RFE comes answer it with proper documentation.
Newbie2009,

From what I understand, the only case where you do not have to file AC21 is when you plan to go work for your petitioning employer after you get your GC. In such a case, you must be in a position to get an EVL from your petitioning employer if and when USCIS demands it. Unless you are going to be able to do both these things, you must submit AC21.

AC21 updates the records with USCIS so that when the time comes to validate your employement, you can provide a letter from your current employer and USCIS will be fine with it. Without AC21, USCIS will expect a letter from your petitioning employer and a letter from anybody else will trigger a red flag.

It does not mean they will deny your petition right away, but it could be a potential issue. I suggest go with AC21.

Disclaimer: This is not a legal advice. You must consult your own attorney.

[pdfeb09]

In addition to what pdfeb said - from what I know - there is no such requirement that one MUST file AC21. AC21 is a provision by which a candidate can change jobs without hurting the green card processing. It is meant more for adjudicating officer than for the candidate. So it might not be a bad idea to switch and then wait and watch for an RFE. If and when RFE comes answer it with proper documentation.

I guess if you asked USCIS, they will say it is a MUST. The non-mandatory factor comes in because the USCIS may just approve your GC without asking for an EVL. In that case, it doesn't matter who you would work for post GC. The approval will be given thinking that you would be with the petitioning employer.

The OP mentioned that he/she was planning to work on H1 with the new company. This means the USCIS will have 2 different employers associated with the OP's case. The chances of getting a request for EVL are higher.

PS: moderators plz move this and the related posts to the AC21 thread (http://www.qesehmk.org/forums/showthread.php/992-AC21-Discussion).

[qesehmk]

pdfeb - I am not aware of any directive from USCIS that says a candidate must file AC21. In fact I am not even aware of such form. So if you are aware - please post. Thanks.
I guess if you asked USCIS, they will say it is a MUST. The non-mandatory factor comes in because the USCIS may just approve your GC without asking for an EVL. In that case, it doesn't matter who you would work for post GC. The approval will be given thinking that you would be with the petitioning employer.

The OP mentioned that he/she was planning to work on H1 with the new company. This means the USCIS will have 2 different employers associated with the OP's case. The chances of getting a request for EVL are higher.

PS: moderators plz move this and the related posts to the AC21 thread (http://www.qesehmk.org/forums/showthread.php/992-AC21-Discussion).

[username]

pdfeb - I am not aware of any directive from USCIS that says a candidate must file AC21. In fact I am not even aware of such form. So if you are aware - please post. Thanks.



If your GC sponsoring employer is desi consulting and you are switching to good reliable company (non desi company) than I would suggest to file AC21 with help of your own lawyer (not new company lawyer).


EAD renewal receipt and approval notice says below:

"As a reminder, if you have an underlying Form !-140 that is approved or is still pending, you may request to change employers under INA 204(j) if your Form I-485 Adjustment application has been pending for at least 180 days. In order to do so, you should supplement the Form I-485 record of proceeding with documentation relating to the new job offer that forms the basis of the INA 204(j) portability request. For more information on how to request to change employers and what information is required to supplement the Form I485, please visit www.uscis.gov."


http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=cfe8745543256210VgnVCM100000082ca60aRCR D&vgnextchannel=7085aca797e63110VgnVCM1000004718190a RCRD

Q #7. Who is eligible to submit a request to change employers under INA 204(j), which is commonly known as "porting" under INA 204(j)? [Answer Finalized on 12/14/09]

A. An alien beneficiary of a pending or approved Form I-140 petition whose application for adjustment of status (Form I-485) has been filed and remains un-adjudicated for 180 days or more and who seeks to change jobs to a new job that is the same or similar occupational classification may submit a request to "port" under AC21.

Note: Determinations of eligibility for INA §204(j) portability are made within the adjudication of Form I-485 applications and not the adjudication of Form I-140 petitions.

Q #8. How can an alien beneficiary submit a request to change employers under INA 204(j)? [Answer Finalized on 12/14/09]

A. An alien beneficiary may supplement the Form I-485 record of proceeding with documentation relating to the new job offer that forms the basis of the INA §204(j) portability request. The alien beneficiary or the Form G-28 representative for the Form I-485 application must send a letter from the new intended permanent employer specifying the job title and duties of the offered position, the minimum educational or training requirements, the date the alien beneficiary began (or will begin) employment and the offered salary or wage. The letter must be issued and signed by the appropriate authority within the new employer's organization who is authorized to make or confirm an offer of permanent employment. In addition, a copy of the Form I-140 approval notice or receipt notice and a copy of the Form I-485 receipt notice should be provided to locate the alien's beneficiary's case file and to confirm that the application has been pending for at least 180 days.

Q #9. May an alien beneficiary request to "port" to a different employer or job under INA 204(j) if his or her Form I-140 petition is still pending? [Answer Finalized on 12/14/09]

A. Yes, an alien beneficiary may request to change employers under INA 204(j) while the Form I-140 petition is pending, as long as his or her Form I-485 adjustment application has been pending for at least 180 days. However, in order for the Form I-140 petition to "remain valid" for INA §204(j) purposes, it must be determined that the petition was "valid" when filed, i.e., that the I-140 petition was filed on behalf of an alien who was entitled to the employment-based classification and that the petition contained a valid job offer at the time that the petition was filed. Therefore, the petition must be approved prior to a favorable determination regarding a portability request made under INA §204(j).

Guidance on the adjudication of requests to change employers (or jobs) under INA §204(j) was published in USCIS's December 27, 2005 memorandum entitled, Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313). This memo specifically dealt with how USCIS processes unapproved I-140 petitions that were concurrently filed with I-485 applications in the portability context. If evidence is submitted to USCIS that an alien seeks to adjust on the basis of a new job offer under INA 204(j), then, the adjudicator will first determine if the alien is the beneficiary of an approved I-140 petition. If he or she is not, the adjudicator will proceed to determine whether the unapproved, pending I-140 was approvable when filed (this may involve issuance of an RFE if the I-140 cannot be approved without further evidence of its merits). Then, only if the I-140 can be approved, the adjudicator will adjudicate the adjustment of status application and also determine if the new position is the same or similar for I-140 portability purposes.

more...

[SmileBaba]

Gurus/Friends please suggest on my case:

Worked for Company A from 2006 to Dec 2011. Company A filed labor and Eb2 I140 approved in June 2008 with PD Dec 2007. Company A is a desi consulting company.
My wife was having hard time getting H4 in 2011. After her H4 visa interview my H1B was sent for further review and nothing was happening.
So I joined my client directly and hence transferred my H1B to company B in dec 2011, in order to have my wife a second shot at H4.
She did got the visa second time after some hassles. Now in Apr 2012 we both filed I485 with the consent of Employer A as the position was still available and 485 was filed as a future employee.
Currently I am doing alright with employer B and was wondering if I can safely continue to work with employer B after getting my green card. Is AC21 a must in my case?
Thanks guys!

[qesehmk]

username - don't you think all it says is - applicant is eligible to file such request. But being eligible is not same as being required to do it.

Smilebaba - if you continue with B - you are practically using AC21 provision already since you are not with A and working for B in same or similar job. If USCIS sends an RFE then respond. Otherwise no need to do "Aa bail mujhe maar" !!!

[SmileBaba]

username - don't you think all it says is - applicant is eligible to file such request. But being eligible is not same as being required to do it.

Smilebaba - if you continue with B - you are practically using AC21 provision already since you are not with A and working for B in same or similar job. If USCIS sends an RFE then respond. Otherwise no need to do "Aa bail mujhe maar" !!!

That's exactly what I would want to avoid "Aa bail mujhe maar" :p
But Q I was neither working for the petitioner at the time of filing I485 nor I worked for them since I filed I485 in April 2012. Now since we filed I485 with Employer A as me being a future employee, wouldn't USCIS raise question about my intent at the time of citizenship or if they happen to audit or something?

Technically USCIS doesn't know if am working on a same or similar job with company B, as at the time of I485 EVL was provided by employer A. I don't know if I am thinking too much, but I just want to play safe and not end up loosing my GC application.

[gcq]

Gurus/Friends please suggest on my case:

Worked for Company A from 2006 to Dec 2011. Company A filed labor and Eb2 I140 approved in June 2008 with PD Dec 2007. Company A is a desi consulting company.
My wife was having hard time getting H4 in 2011. After her H4 visa interview my H1B was sent for further review and nothing was happening.
So I joined my client directly and hence transferred my H1B to company B in dec 2011, in order to have my wife a second shot at H4.
She did got the visa second time after some hassles. Now in Apr 2012 we both filed I485 with the consent of Employer A as the position was still available and 485 was filed as a future employee.
Currently I am doing alright with employer B and was wondering if I can safely continue to work with employer B after getting my green card. Is AC21 a must in my case?
Thanks guys!

Greencard is for future employment. So right now you are perfectly alright legally. If you were planning to join company A after your GC approval AC21 is not required at all.

However in your case you plan to continue for employer B after GC approval. So AC21 filing is recommended.

Going further into the requirement for AC21 filing:
Q is technically correct. There is no law mandating the "filing" of AC21 documents. It is just a law allowing you to continue to work for "same or similar" occupation for a different employer after 180 days of I-485 filing. As Q said you could wait for an RFE and respond in a timely fashion if it comes.

However if there is a chance that your I-140 maybe withdrawn by your petitioning employer, it is safe to do AC21 filing just once. If done once, these files will be associated with your I-485. If adjudicating officer has any doubt about your GC employment, your filed documents indicate that you have already changed your employer and he has no reason to send an RFE.

Typically if your I-140 is intact, adjudicating officer won't ever issue an EVL RFE.

[qesehmk]

Smilebaba - I think your concern is very valid. Also your case is interesting since generally when people talk about AC21, they are talking about leaving the employer that sponsored the GC. However if you look at the intent of AC21 - it is to prevent chronic slavery of people to one employer when they can't get a visa number in this backlogged system. So the question of whether you ever worked for A is technical at best. Luckily US is one of those rare countries where law is not ass and although I can't guarantee you - but if at all a time comes when USCIS questions your situation - I am almost sure your situation will be looked at very very favorably. If you still have nagging doubts - it might be worthwhile spending some money on a lawyer.... but do not go to USCIS telling things that they haven't asked for and don't require you to.

That would be perfect "Aa bail mujhe maar" Or if you like this one " Pair pe kulhadi " or even worse .... kulhadi pe pair ;)

That's exactly what I would want to avoid "Aa bail mujhe maar" :p
But Q I was neither working for the petitioner at the time of filing I485 nor I worked for them since I filed I485 in April 2012. Now since we filed I485 with Employer A as me being a future employee, wouldn't USCIS raise question about my intent at the time of citizenship or if they happen to audit or something?

Technically USCIS doesn't know if am working on a same or similar job with company B, as at the time of I485 EVL was provided by employer A. I don't know if I am thinking too much, but I just want to play safe and not end up loosing my GC application.

[makmohan]

Hi All,
I have a question regarding AC21. Please move it to the appropriate thread if needed. I am in eb2 category, labor, 140 approved, 485 filed back in Feb 2012, have ead, using h1 (which expires in 2016) and working for the same company for which the above have been filed since 5 yrs. If I decide to move to a new company on h1, apart from my job duties and responsibilities being the same as also the job title (in the new company), do I still need to file an AC21? Or is the AC21 only applicable if I use my EAD in the new company?

Please advise.

Newbie, I was in the exact same boat as yours 4 months back. 485 filed in Feb 2012!! My H1B was expiring and I was in the process of switching my job to a large, reputed company. They extended my H1 just in time as well as helped me extend my and my wife's EAD. We also recently submitted my AC21 and status of my I140 is currently "In Review" from previously "Approved" status. From lawyers opinion, it is side effect of AC21 and nothing to worry as there is absolutely no fraud of any kind. Both my previous and new companies are genuine employees.

So stop thinking and take action. If you like your new job, go for it and enjoy your work !! Good Luck !!

[SmileBaba]

Smilebaba - I think your concern is very valid. Also your case is interesting since generally when people talk about AC21, they are talking about leaving the employer that sponsored the GC. However if you look at the intent of AC21 - it is to prevent chronic slavery of people to one employer when they can't get a visa number in this backlogged system. So the question of whether you ever worked for A is technical at best. Luckily US is one of those rare countries where law is not ass and although I can't guarantee you - but if at all a time comes when USCIS questions your situation - I am almost sure your situation will be looked at very very favorably. If you still have nagging doubts - it might be worthwhile spending some money on a lawyer.... but do not go to USCIS telling things that they haven't asked for and don't require you to.

That would be perfect "Aa bail mujhe maar" Or if you like this one " Pair pe kulhadi " or even worse .... kulhadi pe pair ;)

You are right that in my case I definitely have to consult with a good attorney. And yeah I am sitting tight and will only take action if asked by USCIS :)..and in any case my application is genuine and it's just that I would prefer to continue working with company B. It's hard to take any decision at the moment but will see what lawyer(s) suggest. Thanks Q!

[pdfeb09]

pdfeb - I am not aware of any directive from USCIS that says a candidate must file AC21. In fact I am not even aware of such form. So if you are aware - please post. Thanks.

Q,

You are right about there being no form for AC21. However, the very fact that a specific provision has been made for exactly such a situation virtually requires the beneficiary to make use of it. I do not see this as "aa bail mujhe maar" situation at all. If anything, I see this as CYA (covering your A$$) in case USCIS were to pull you up. Especially since the op was planning to transfer his/her H1b to the new employer, the USCIS will be very aware that the current employer is different than the petitioning employer. I believe there will be a question regarding the petitioning-position's existance just before granting the GC.

Why delay the approval when the dates become current instead of nipping the query in the bud while we still have time?

Just my .2 cents...

[pdfeb09]

That's exactly what I would want to avoid "Aa bail mujhe maar" :p
But Q I was neither working for the petitioner at the time of filing I485 nor I worked for them since I filed I485 in April 2012. Now since we filed I485 with Employer A as me being a future employee, wouldn't USCIS raise question about my intent at the time of citizenship or if they happen to audit or something?

Technically USCIS doesn't know if am working on a same or similar job with company B, as at the time of I485 EVL was provided by employer A. I don't know if I am thinking too much, but I just want to play safe and not end up loosing my GC application.

smilebaba,

For GC, there is really no requirement that you work for the petitioning employer before you get your GC. So long as your employer A is willing to submit an EVL on your behalf whenever required, you are fine and are not using AC21.

You would be using AC21 if you get an EVL from your company B (current employer) and submit that to the USCIS. Until then, TECHNICALLY, you are just working for company B on H1B and are waiting for your GC to join the company A. Company A intends to employ you after your GC and you (from the USCIS's point of view) intend to join company A. You are just biding your time at company B in the meanwhile. Note that your job description at company B does not have to match your job description in the petition at this time. If you do decide to make use of AC21, only then does the job descriptions come into picture.

If however, there is a chance that company A will either not provide the EVL or revoke your I 140 (it does not affect your GC process anymore since 180 days have passed), you would be better off providing AC21 documents to the USCIS and officially consider company B as your future employer.

PS: I pretty much echoed gcq's post. gcq you beat me to it. Sorry for the redundancy.

[SmileBaba]

Why delay the approval when the dates become current instead of nipping the query in the bud while we still have time?
Just my .2 cents...
Hi Pd! I am sorry but I didn't get your point here ...?

[pdfeb09]

Hi Pd! I am sorry but I didn't get your point here ...?

Smilebaba,

The part of the post you mentioned was mainly for the original poster. He/she was planning to join a new employer (by transferring, I believe) on H1B. Which means USCIS will be explicitly made aware of the fact that the employer was being changed from the petitioner to a different one. So it is safe to assume that getting an EVL query, just before approving a GC, is very likely. This generally happens when the dates are current and the IO is getting ready to put a stamp. Now, would you rather spend time replying to the query when the dates are current, OR would you rather get it out of the way now and have everything set up for the officer to stamp the approval right away?

Of course, it is also quite possible that there may not be any question about the EVL since the H1 was successfully transferred. But if we augment that with AC21, then the IO has everything he/she needs to complete the adjudication.

I do not want to be a fear monger and I have nothing to gain by anybody submitting the AC21 documents. It is just what I would do in a similar situation.

Cheers and Good luck.

[incredible]

Does this mean to say that it makes more sense to file for AC21 during the job change only in the case if we are also doing a H1 Transfer. What if we are changing the job on only EAD ? In that case would it make more sense to file AC21 when the dates are current and USCIS asks for EVL ?



Smilebaba,

The part of the post you mentioned was mainly for the original poster. He/she was planning to join a new employer (by transferring, I believe) on H1B. Which means USCIS will be explicitly made aware of the fact that the employer was being changed from the petitioner to a different one. So it is safe to assume that getting an EVL query, just before approving a GC, is very likely. This generally happens when the dates are current and the IO is getting ready to put a stamp. Now, would you rather spend time replying to the query when the dates are current, OR would you rather get it out of the way now and have everything set up for the officer to stamp the approval right away?

Of course, it is also quite possible that there may not be any question about the EVL since the H1 was successfully transferred. But if we augment that with AC21, then the IO has everything he/she needs to complete the adjudication.

I do not want to be a fear monger and I have nothing to gain by anybody submitting the AC21 documents. It is just what I would do in a similar situation.

Cheers and Good luck.