Considering AC21 Job Change

[gkjppp]

All Guru's,

i am considering a full time after starting aug 1st, I may get my GC in 2015/16 without CIR. I am working on EAD since this Feb'2013.recent RFE's clearly shows
AC21 is a option to change employers after 180 days.My employer withdraws my I140 as soon as i make a move.Hoping i will not get any 485 denial. Please do share your experiences who recently changed jobs using AC21.

"I like Spec's Spectacular accuracy in determining actual demand, if CO follows Q's forum, he dont need to look at demand on constant basis and mess up with EB2I."
"CO's messup helps folks like me "
Moderators please move this question to appropriate thread.

[vizcard]

All Guru's,

i am considering a full time after starting aug 1st, I may get my GC in 2015/16 without CIR. I am working on EAD since this Feb'2013.recent RFE's clearly shows
AC21 is a option to change employers after 180 days.My employer withdraws my I140 as soon as i make a move.Hoping i will not get any 485 denial. Please do share your experiences who recently changed jobs using AC21.

"I like Spec's Spectacular accuracy in determining actual demand, if CO follows Q's forum, he dont need to look at demand on constant basis and mess up with EB2I."
"CO's messup helps folks like me "
Moderators please move this question to appropriate thread.

I don't have personal experience (yet!) but by law if you can prove that's its a similar job and your employer certifies that they have and will have the job available to you in the future, you will have absolutely no problems.

[gkjppp]

I don't have personal experience (yet!) but by law if you can prove that's its a similar job and your employer certifies that they have and will have the job available to you in the future, you will have absolutely no problems.

Thanks Viz. your PD is so close to become current, now or next year same time.

[Spectator]

I would also add that it might be important, in light of the recent RFEs from TSC, to determine that the minimum educational / experience requirements for the new job meet the minimum requirements for the EB2 Category.

You may need your new employer to attest to that if you were to receive a similar RFE in the future.

Good luck.

[incredible]

All Guru's,

i am considering a full time after starting aug 1st, I may get my GC in 2015/16 without CIR. I am working on EAD since this Feb'2013.recent RFE's clearly shows
AC21 is a option to change employers after 180 days.My employer withdraws my I140 as soon as i make a move.Hoping i will not get any 485 denial. Please do share your experiences who recently changed jobs using AC21.

"I like Spec's Spectacular accuracy in determining actual demand, if CO follows Q's forum, he dont need to look at demand on constant basis and mess up with EB2I."
"CO's messup helps folks like me "
Moderators please move this question to appropriate thread.

Actually I am in the same boat (with PD being 02/01/2010). I am changing my job next month (already have an offer). I am as well moving to a new location. I hired an attorney myself (my new company does not want to manage Attorney for me, but expressed willingness to provide any letter for AC-21 etc). I am going to send all the documents (like EAD, EAD approvals, I485 receipt, I140 etc) to the attorney in the next week. Experts, please share any dos and dont's etc in this critical phase.

[gkjppp]

I would also add that it might be important, in light of the recent RFEs from TSC, to determine that the minimum educational / experience requirements for the new job meet the minimum requirements for the EB2 Category.

You may need your new employer to attest to that if you were to receive a similar RFE in the future.

Good luck.

you are right Spec,i spoke with HR, Job requirments are BS with 5+ years exp or MS with 3+ yrs exp.Technologies mentioned in the perm matches almost 80%, roles and responsibilities matches 95%.

[Spectator]

you are right Spec,i spoke with HR, Job requirments are BS with 5+ years exp or MS with 3+ yrs exp.Technologies mentioned in the perm matches almost 80%, roles and responsibilities matches 95%.gkjppp,

That's good to hear.

I didn't think it would be a problem in your case, but I thought it was worth mentioning.

I remember (some time ago) seeing a Trackitt case where an EB2 applicant had used AC21 to move to a job that only required Bachelors + 4. I remember thinking at the time that appeared to be a problem if USCIS became aware of it.

The recent RFEs suggest that USCIS do check for this type of anomaly when making the determination that the job is "same or similar" for AC21 I-140 purposes.

All the best for the new job.

[harapatta2012]

Spec,

You are correct that the (mass) RFE that people got in July 2013 required them to submit 'minimum educational or training requirements' among other things that needed to be listed on EVL.

In contrast, I received a RFE in april of 2012 (my PD 08/15/2008) that DID NOT ask for such min edu requirement back then. I was asked to submit following:

'You must submit a currently dated letter from your intended permanent employer, describing your present job duties and position in the organization, your proffered position (if different from your current one), the date you began employment and the offered salary or wage. This letter should be in the original and signed by an executive or officer of the organization who is authorized to make or confirm an offer of permanent employment. The letter must also indicate whether the terms and conditions of your employment-based visa petition (or labor certification) continue to exist.'

If now educational min requirements need to be matching the EB2 then we might see more AC 21 rejections? Correct?

I has applied with MS + 2yr exp. Now most jobs REQUIRE only bachelor + 2-4 yr exp. I am thinking I might be in trouble If I go AC 21 route now.

[RogerFederer]

Here is the summary of Yates Memo.
1.Description of the job duties contained in the ETA 750A
2.The DOT code and/or SOC code
3.A substantial discrepancy between the previous and the new wage.

In doubt they can verify other information as well. You will need advise from a good attorney, who can assess the risk better after looking at all facts.

[harapatta2012]

Thanks. Yates Memo descp is certainly correct. But what I notice is change in the RFE letter that states what needs to be sent for employment verification letter.

My own experience last year, 2012, was that USCIS did not specifically asked for min education requirement but now they have clearly asked for that.

Thats why I am concerned that AC21 rejection may spike.

Wasnt it true that most people didnt worried about sending min educational requirement until recently?

[indiani]

"conditions of your employment-based visa petition (or labor certification) continue to exist.' "

Perm has minimum job requirements, so above statement or explicitly stating what those min job requirements is the same

[Spectator]

Spec,

You are correct that the (mass) RFE that people got in July 2013 required them to submit 'minimum educational or training requirements' among other things that needed to be listed on EVL.

In contrast, I received a RFE in april of 2012 (my PD 08/15/2008) that DID NOT ask for such min edu requirement back then. I was asked to submit following:

'You must submit a currently dated letter from your intended permanent employer, describing your present job duties and position in the organization, your proffered position (if different from your current one), the date you began employment and the offered salary or wage. This letter should be in the original and signed by an executive or officer of the organization who is authorized to make or confirm an offer of permanent employment. The letter must also indicate whether the terms and conditions of your employment-based visa petition (or labor certification) continue to exist.'

If now educational min requirements need to be matching the EB2 then we might see more AC 21 rejections? Correct?

I has applied with MS + 2yr exp. Now most jobs REQUIRE only bachelor + 2-4 yr exp. I am thinking I might be in trouble If I go AC 21 route now.harapatta2012,

Apologies for the delay in replying. I did not see your post originally.

I think the point is, that to qualify for approval under EB2, the job must REQUIRE an Advanced Degree or in the alternative a minimum of Bachelors plus 5 years progressive experience.

The AC21 provisions don't relieve the new job of those requirements.

USCIS cannot approve a case under EB2 where the (new) job has minimum education and experience requirements less than the minimum required to qualify for EB2.

Coming to your other point, I admire your honesty. It is inconceivable that virtually all PERM applications nowadays REQUIRE an Advance Degree or the alternative. The unspoken truth is that it has happened to ensure the case can be filed under EB2.

I think USCIS is as aware as anyone else that there has been some minimum Education Requirement and Experience "inflation" (if I can put it that way) going on. That is probably easier to achieve with some Employers than others.

I think the decision to now start asking for the minimum education, experience and training requirements for a job via an RFE is a reaction to this. They almost certainly always could have asked, but they have now decided to exercise their right to explicitly ask for this information.

For some people, if they cannot satisfy themselves that the minimum requirements of a new job conform to those for EB2 and that the Employer will testify to USCIS that they do, they may well have to think carefully about using the AC21 provisions.

I don't necessarily think the education requirements of the new job have to precisely match those of the old job, but they must at a minimum match those necessary to be considered under EB2.

Those are my personal thoughts on the matter.

I think this area of concern is so fresh that, for anyone considering a change, an attorney consultation would be in order rather than listening to my thoughts.

[harapatta2012]

harapatta2012,

Apologies for the delay in replying. I did not see your post originally.

I think the point is, that to qualify for approval under EB2, the job must REQUIRE an Advanced Degree or in the alternative a minimum of Bachelors plus 5 years progressive experience.

The AC21 provisions don't relieve the new job of those requirements.

USCIS cannot approve a case under EB2 where the (new) job has minimum education and experience requirements less than the minimum required to qualify for EB2.

Coming to your other point, I admire your honesty. It is inconceivable that virtually all PERM applications nowadays REQUIRE an Advance Degree or the alternative. The unspoken truth is that it has happened to ensure the case can be filed under EB2.

I think USCIS is as aware as anyone else that there has been some minimum Education Requirement and Experience "inflation" (if I can put it that way) going on. That is probably easier to achieve with some Employers than others.

I think the decision to now start asking for the minimum education, experience and training requirements for a job via an RFE is a reaction to this. They almost certainly always could have asked, but they have now decided to exercise their right to explicitly ask for this information.

For some people, if they cannot satisfy themselves that the minimum requirements of a new job conform to those for EB2 and that the Employer will testify to USCIS that they do, they may well have to think carefully about using the AC21 provisions.

I don't necessarily think the education requirements of the new job have to precisely match those of the old job, but they must at a minimum match those necessary to be considered under EB2.

Those are my personal thoughts on the matter.

I think this area of concern is so fresh that, for anyone considering a change, an attorney consultation would be in order rather than listening to my thoughts.

Spec,

Thank you as always for your clearly explained input. I concur with your thoughts 100%.

You made good point that min educational requirement was always there just now it is becoming explicit. Yes it is fresh area and The attorney i spoke with suggested the same.

I think that is the reason many people have not had issues in the past. And now that it needs to be seen if this change lead to either
(1) a reduction in AC21 applications, or
(2) ppl getting more RFE and NOID with AC21 or
(3) ppl still ignore this new request and send EVL without this information.
(4) or ppl has and would find jobs meeting such requirement atleast stated in EVL.

I guess (4) is what would happen. I would try down this path.

[tenyearsgone]

Wow.. this GC waiting period is a gift that keeps on giving :(



(4) or ppl has and would find jobs meeting such requirement atleast stated in EVL.

I guess (4) is what would happen. I would try down this path.

I used AC-21 earlier this year and am on EAD.. my EB2I was under a Master's category. My new position has the same/similar classification, but I don't remember the ad for the position saying that a MS was absolutely required. I think it only mentioned 10+ years of experience. Should I now start another job search in an attempt to satisfy the educational req ( and maybe also ask employer for new Labor and I-140)? My priority date is Sep 2009, so it's not going to be current any time soon... I am inclined to watch a bit closely till later this year to see if there is any impact.

My current salary is also close to 90% more than the salary offered on my Labor filing, but my location has now changed from Virginia to CA... I was initially concerned about this, but figured it wouldn't impact much keeping in mind the the location and economy in 2009.

[harapatta2012]

Well, you put it as a gift in interesting way :p

I just saw that there is a difference in RFE that was issued to me last year and one that was issued as mass RFE to other people this year.

The difference is "only" 5 words but that is sufficient to screw things or atleast make people 'Highly' concerned about AC21. The 5 words are "" minimum educational or training requirements".

I myself is very concerned and have contacted multiple lawyers. Two said that it is required or was implicitly required before also. One said not needed but then said he would check about mass RFE and that it could be wrong since I saw on internet. It is not wrong and you can search mass July RFE that ppl have posted.

Hope this info helps you to think this further.

[indiani]

Well, you put it as a gift in interesting way :p

I just saw that there is a difference in RFE that was issued to me last year and one that was issued as mass RFE to other people this year.

The difference is "only" 5 words but that is sufficient to screw things or atleast make people 'Highly' concerned about AC21. The 5 words are "" minimum educational or training requirements".

I myself is very concerned and have contacted multiple lawyers. Two said that it is required or was implicitly required before also. One said not needed but then said he would check about mass RFE and that it could be wrong since I saw on internet. It is not wrong and you can search mass July RFE that ppl have posted.

Hope this info helps you to think this further.

A case of AC21 cannot be adjudicated solely based on minor change in detail rather entirety of case.

when ' condition of perm continue to exist " is mentioned in AC21 letter that implies ' min. educational qualifications' mentioned in perm.

[RogerFederer]

Wow.. this GC waiting period is a gift that keeps on giving :(

Should I now start another job search in an attempt to satisfy the educational req ( and maybe also ask employer for new Labor and I-140)? .

How early in the year. if its Jan, it could have already been looked at by officer. I would look at AC21 documentation submitted and see if the new job has similar employer requirement justified in it. If its 10+ requirement, there can be equivalent MS + exp to that. You can submit the same when and if you have another rfe.

[tenyearsgone]

The job change was in April. AC-21 was submitted by attorney in late June after the RFE frenzy. Gahh!! I'll have to check with attorney/HR regarding any educational requirements and support for the same...

[harapatta2012]

A case of AC21 cannot be adjudicated solely based on minor change in detail rather entirety of case.

when ' condition of perm continue to exist " is mentioned in AC21 letter that implies ' min. educational qualifications' mentioned in perm.

The 'implied' is what I also thought was correct UNTIL I saw this mass RFE in july which 'explcitly' asks for min. educational qualifications.

I think this is a big change.

I have read a lot where people have confusion about what things needs to be met for AC21 beacuse lot of things are implied.

Once explicit they are Rule of Law and there is no confusion.

[indiani]

The 'implied' is what I also thought was correct UNTIL I saw this mass RFE in july which 'explcitly' asks for min. educational qualifications.

I think this is a big change.

I have read a lot where people have confusion about what things needs to be met for AC21 beacuse lot of things are implied.

Once explicit they are Rule of Law and there is no confusion.

in general min edu. qualifications are almost same for most jobs which are same or similar.

there are minor exceptions.

[tenyearsgone]

I looked at my perm application again today. The filing says that MS is required and alternate education/training is not sufficient... doesn't sound like my employer can claim that something like BS+6 or MS+4 works for this position. Anyways I'll have to check with the HR about it but I don't have much hope at this point that they'll say that only a MS is sufficient.

I would appreciate getting some info on potential alternatives:
1. Can my current employer file a new Perm and I-140 and transfer my pending I485 on to it? If yes, I am on EAD... will I be able to extend my EAD in this scenario?
2. My old H1 has not expired yet, although it wasn't transferred. Can it be transferred now ( after ~6 months) on the basis of the I-140? If yes, do I need to go out of the country to get it stamped right away?

[harapatta2012]

tenyeargone,

I do not know for certain answers to your question. Sorry.

But I can tell you this. I did a extensive google search on what are reasons, how often, how many rejections denials, RFE happen for AC21 cases. 80% or denials are related to underlying I-140 being evoked by previous employer. Even in that case, ppl do MTR and one way or other get their GC. rest 20% or denials I saw were in 2006-2008 time frame when a lot of rejections on AC21 were happening due to some USCIS mistake which i believe have been corrected since many years now.

So, I have not found ANY case at all where a person was denied GC because of AC21 on grounds of job title, salary, min education, description.

Offcourse its possible ppl havent posted those denials.
or I missed those (please let me know if i missed any)
or maybe everyone had correct min qualification + other things in their EVL.
or maybe this new explicit rule would result in more denials going forth.

But considering that AC21 was not denied at all based on job related criteria, its a high likelihood that in future also AC21 would be treated as lenient process regarding job criteria.

[RogerFederer]

I looked at my perm application again today. The filing says that MS is required and alternate education/training is not sufficient... doesn't sound like my employer can claim that something like BS+6 or MS+4 works for this position. Anyways I'll have to check with the HR about it but I don't have much hope at this point that they'll say that only a MS is sufficient.

I would appreciate getting some info on potential alternatives:
1. Can my current employer file a new Perm and I-140 and transfer my pending I485 on to it? If yes, I am on EAD... will I be able to extend my EAD in this scenario?
2. My old H1 has not expired yet, although it wasn't transferred. Can it be transferred now ( after ~6 months) on the basis of the I-140? If yes, do I need to go out of the country to get it stamped right away?

If your current job qualification is ms or bs+5, then you still have a job meeting the requirements.

But please do remember that you are too late for 1, before you get new140, your rfe will be reviewed anyways.
And 2 is actually a tricky scenario for you since you have used ead. I'm sorry but this is something an attorney consultation required.

[tenyearsgone]

Thanks harapatta2012 for the info .. I guess as you and spec pointed out earlier, there is no historical reason to worry about it as such... The only thing is that this could lead to a new trend.

@RogerFederer - I just want to clarify that there is no RFE yet ... I am just wondering about the situation if there is an RFE, and if something might be done proactively to shore up the case (such as a new perm + I140). FYI, my I485 status changed to "Initial Review" when USCIS got the AC-21 and has been like that since 2-3 months, so I have no idea if they just tacked on the docs to my file or if it really is pending for review.

As you said though, a attorney consultation is worth it here. Thanks.

[tenyearsgone]

Just wanted to circle back on this issue. I consulted with an attorney from Murthy who specializes in I140, Education req, AC21, NOID and related matters on the subject of "minimum education requirement". I got similar confirmation from a different attorney as well. A brief summary is below:

Background:
-- Perm states the following:


Education (minimum level required): Master's
Is alternate field of study acceptable?: No
Is alternate combination of education and experience acceptable?: No
Is foriegn education equivalent acceptable? Yes
Is experience in alternate occupation acceptable? No

-- I140 is for EB2 classification.

---------------------------------------------------------------------------------------------------
1. After AC21 the new job has a minimum req of BS/MS (+5 years exp). What is the risk to pending I485 application?
- There is almost no risk based on the education requirement. AC21 does not state that the new job should have the same requirements, it should only fall in the same or similar job classification. The attorney mentioned that he has no knowledge of AC21 ever failing due to this situation. (PS: I added the "almost" here, the attorney(s) did not seem to be in doubt. I am only convinced that a case can be fought on this basis, not yet sure that it can be won.)

2. Is it possible to transfer H1 (if unexpired) from previous employer even after working on EAD with new employer?
- Yes .. and the time on EAD can be recaptured. If I-140 is intact, a full 3 years can be got on the new H1. Otherwise, based on one of


pending Labor/PERM over 365 days
approved and applied to I140 Labor/PERM
pending EB immigrant petition (I485) for over 365 days

a 12 month validity can be requested for the transferred H1. In all cases, consular processing will be required since the change is from AOS to H1B. After receiving the H1B, you can continue on EAD till/if you decide to go out the country for a visa appointment .. there is no need to travel ASAP.

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I read the following links for further clarity on Question 2 (besides the Yates memo ofcourse).


http://www.srjpc.com/?q=node/27 (Exemptions based on Approved I-140)
http://www.srjpc.com/?q=node/28 (Exemptions to Six Year Time Limit based on pending or approved Labor Certifications or Pending Employment Immigrant Petitions)


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Most notable advice I got out of this: Stay on H1B where possible if you are invoking AC21. [Reason: Erroneous denials do occur occasionally and there is no fixed timeline for a review of MTR. As soon as a denial is issued you are out of status and you (and other dependents working on EAD) have to stop working if you are not on H1B. You should also leave the country within 180 days of denial if your MTR has not been processed. Most likely your employer will not hold your job for that long.]

DISCLAIMER: I am NOT an attorney. This is NOT legal advice. Please do your due diligence with an attorney before acting upon the above.