AC21-Discussion

[Eb2_Dec07]

Gurus ,

May be not correct question for this thread . Please remove it .

My spouse who got GC EB2 I in March first week , has gone to India and worked for US employer remotely from home for 3 months with payroll run in US . On the mark of 6 months plan is to switch the employer . IS this allright ?

Thanks

[vizcard]

Gurus ,

May be not correct question for this thread . Please remove it .

My spouse who got GC EB2 I in March first week , has gone to India and worked for US employer remotely from home for 3 months with payroll run in US . On the mark of 6 months plan is to switch the employer . IS this allright ?

Thanks

After GC is approved she can do anything she wants as long as she is compliant with residency reqts of the GC.

[Desi Dude]

Please please help..............................


COMPLEX SITUATION -

1) Husband and wife on EAD. Wife derivative
2) Both I-485 pending for more than 180days
3) Wife upgrades to EB2 & ports the earlier PD using new approved I-140


QUESTIONS -

1) Does the wife become Principal and Husband Derivative?
2) Does the wife need to abide by 180 day rule now if she wants to change employer?
3) If she has to go through 180 day restriction, when does it start? Just after EB2 I-140 is approved?
4) What if wife's employer revokes the new I-140 after she leaves the employer.

[bvsamrat]

For Gurus to reply
Please add; I-485 pending on EB3 or EB2? If it makes any difference!


Please please help..............................


COMPLEX SITUATION -

1) Husband and wife on EAD. Wife derivative
2) Both I-485 pending for more than 180days
3) Wife upgrades to EB2 & ports the earlier PD using new approved I-140


QUESTIONS -

1) Does the wife become Principal and Husband Derivative?
2) Does the wife need to abide by 180 day rule now if she wants to change employer?
3) If she has to go through 180 day restriction, when does it start? Just after EB2 I-140 is approved?
4) What if wife's employer revokes the new I-140 after she leaves the employer.

[qesehmk]

EB2D - I don't see a problem other than - if the change is preplanned and somehow USCIS learns about it - they might have a problem with it.

Gurus ,

May be not correct question for this thread . Please remove it .

My spouse who got GC EB2 I in March first week , has gone to India and worked for US employer remotely from home for 3 months with payroll run in US . On the mark of 6 months plan is to switch the employer . IS this allright ?

Thanks

DD - the answers are:

#1 - I know that from porting perspective - it is automatic for the primary. So wife will get her GC based on ported date. However, for husband it may not be automatic unless husband also filed a derivative/beneficiary 485 as part of wife's original application. Wouldn't hurt to call USCIS and ask for their advice if wife gets approved and husband doesn't.
#2 - Quite likely No. However technically - USCIS/DOS can site that she is not eligible for AC21 unless she completes 6 months on the second 140.
#3 - Yes since she already has a 485 filed.
#4 - That would be unheard of but technically possible. Which is why I answered #2 the way I did.

My advice - wait for 6 months. Why take risk now that you are almos through.



1) Does the wife become Principal and Husband Derivative?
2) Does the wife need to abide by 180 day rule now if she wants to change employer?
3) If she has to go through 180 day restriction, when does it start? Just after EB2 I-140 is approved?
4) What if wife's employer revokes the new I-140 after she leaves the employer.


For Gurus to reply
Please add; I-485 pending on EB3 or EB2? If it makes any difference!
Not sure what the question is Samrat.

[Desi Dude]

Thanks for the prompt response. I would like to clarify further -

Husband's case is EB2 but with a later PD than wife's EB3 PD. Original I-485 was through Husband and not wife. Wife was derivative.

Are you suggesting Husband to file another I-485 as a derivative?

I guess as long as Wife's employer doesn't revoke her newly approved EB2 I-140, she should be able to do anything, including leaving the employer.

Also, once wife's EB2 I-140 is approved, Husband should become the derivative and will be free to leave employer or do anything else.

[Kanmani]

Desi Dude

What you have to do is, ask your attorney to write a letter to the uscis claiming to adjudicate your already pending I-485 application as dependent by using the your wife's PD. This is usually done when husband and wife have two separate EB AOS cases.

Yes once you get your GC as a dependent of your Wife's case, you are free to change jobs any time.

[Desi Dude]

Desi Dude

What you have to do is, ask your attorney to write a letter to the uscis claiming to adjudicate your already pending I-485 application as dependent by using the your wife's PD. This is usually done when husband and wife have two separate EB AOS cases.

Yes once you get your GC as a dependent of your Wife's case, you are free to change jobs any time.


You mean, after she gets PD ported to EB2?

Also still confused about whether she can leave her employer after porting & before 180 days.

[Kanmani]

Desi Dude,

Your original post says your wife has ported her Eb3 PD to Eb2 PD.

As this is a porting case, I think the AC21 applicability might start after the interfiling letter is acknowledged by the uscis.

[Desi Dude]

Desi Dude,

Your original post says your wife has ported her Eb3 PD to Eb2 PD.

As this is a porting case, I think the AC21 applicability might start after the interfiling letter is acknowledged by the uscis.


Oh, thats bad news.

Although, she is in good terms with her employer, and the employer won't revoke her new I-140. Which means she can still leave her employer within 180 days of interfiling and then apply AC21 after 180 days.

Also, after the interfiling mail, husband will become Derivative. Will he need to do anything else?

[Kanmani]

Oh, thats bad news.

Although, she is in good terms with her employer, and the employer won't revoke her new I-140. Which means she can still leave her employer within 180 days of interfiling and then apply AC21 after 180 days.

Also, after the interfiling mail, husband will become Derivative. Will he need to do anything else?

Her employer may be ok with the job change before 180 days, but she is not complying with the 180 days requirement to invoke Ac21 applicability. For instance, if there is an RFE asking to prove her employment for the said period how do you intend to prove? No employer will help you with providing false pay stubs!!!!!!!

[yank]

Gurus-

I have a new job opportunity which I don't want to miss. I have completed 180 days’ time after filing my I-485.
I was bit unlucky and got RFE in the month of March 2012 and my PD is Jan 2008. RFE got cleared but unfortunately dates had retrogressed.
Please suggest the paper work required to file AC21 and what exactly needs to be done if I want to change the employer. My roles and responsibilities are going to same as I am moving from a consulting position to a FTE. I have searched AC21 form but couldn't found it. Not sure if it actually exists.

[Desi Dude]

Her employer may be ok with the job change before 180 days, but she is not complying with the 180 days requirement to invoke Ac21 applicability. For instance, if there is an RFE asking to prove her employment for the said period how do you intend to prove? No employer will help you with providing false pay stubs!!!!!!!


Maybe I'm wrong, but as I understand, I-485 is for future employment. You don't have to be working for the employer or even be in the country while I-485 is pending. Wife is on EAD, she can even sit at home if she wants.

I guess as long as the employer doesn't revoke her EB2 I-140 within 180 days of interfiling, she can do whatever she wants.

[Kanmani]

Maybe I'm wrong, but as I understand, I-485 is for future employment. You don't have to be working for the employer or even be in the country while I-485 is pending. Wife is on EAD, she can even sit at home if she wants.

I guess as long as the employer doesn't revoke her EB2 I-140 within 180 days of interfiling, she can do whatever she wants.

Desi Dude , You are contradicting your original post. You wanted to know if she can leave the employer before completion of 180 days of I-485filing.
When somebody uses AC21 to change employers they are not bound with the sponsoring employer for that future employment described in the perm.

I agree that GC is future employment and the beneficiary is not required to be physically present in US etc. When you file I-485 as a future employee, you must join the employer after receiving your GC.

The sentence marked in blue is correct only if she has worked for the sponsor in that specific job for 180 days. She can't sit at home and count 180 days to leave the employer.

Hope you understand

[Kanmani]

Gurus-

I have a new job opportunity which I don't want to miss. I have completed 180 days’ time after filing my I-485.
I was bit unlucky and got RFE in the month of March 2012 and my PD is Jan 2008. RFE got cleared but unfortunately dates had retrogressed.
Please suggest the paper work required to file AC21 and what exactly needs to be done if I want to change the employer. My roles and responsibilities are going to same as I am moving from a consulting position to a FTE. I have searched AC21 form but couldn't found it. Not sure if it actually exists.

Yank,

There is no such form exists. It is merely a letter to uscis along with the new job offer ( like EVL) for their records. You can ask the new employer(attorney) to take care of your AC21 related correspondences before joining them.

[Desi Dude]

Desi Dude , You are contradicting your original post. You wanted to know if she can leave the employer before completion of 180 days of I-485filing.
When somebody uses AC21 to change employers they are not bound with the sponsoring employer for that future employment described in the perm.

I agree that GC is future employment and the beneficiary is not required to be physically present in US etc. When you file I-485 as a future employee, you must join the employer after receiving your GC.

The sentence marked in blue is correct only if she has worked for the sponsor in that specific job for 180 days. She can't sit at home and count 180 days to leave the employer.

Hope you understand


So you are suggesting, the wife should stick with her employer for 180 days after the interfiling email? But what if she is sure that employer won't revoke her I-140, then she can switch jobs before 180 days right?

[Kanmani]

Desi Dude

I am not suggesting anything here. All I am trying to explain is the concept of AC21 rule . The 180 days concept is the flexibility extended to the potential immigrants who have their I-485 pending while their physical GC is at the end of the tunnel. It has nothing to do with the revocation or assurance to protect the I-140 by the employer.

It is the law.

For example,
The concept of EB based GC is that the recipient must work for the sponsoring employer after GC . Here your wife will be the recipient . So, she must join the employer after GC. Ok. What if she is already working for the sponsoring employer and GC for retrogressed countries could take 5 to 6 years and doesn't want to continue in the position ? She has to resign the job and go to another employer and start again the new GC process .

If anybody has a pending I -485, then they are lucky not required to start the GC all over again.

AC21 portability rule allows the I-485 application remain valid if the applicant changes the employer after 180 days of filing . In an instance of changing employer, the uscis must be informed of the change of job by submitting a employment offer letter in a same or similar position with the job acceptance letter and attorney's covering letter.

[bvsamrat]

So much water flown under the bridge

Anyway I requested original poster to clarify if his I-485 is on EB3 or EB2. but he answered in next post

==========================
Not sure what the question is Samrat.[/QUOTE]

[Desi Dude]

I understand what you saying about AC21. But this situation is different. AC21 doesn't talk about interchanging Primary & Derivative. That's why the confusion.

This is what you quoted in your previous post "AC21 portability rule allows the I-485 application remain valid if the applicant changes the employer after 180 days of filing"

Going by your quote Wife has already completed 180 days of filing I-485 as derivative. The law doesn't say anything about what will happen if now she becomes primary and husband derivative and if her employer revokes I-140 before 180 days of Interfiling (which is when she became Principal)

[Kanmani]

Here is my last and final comment in this discussion.


As you claim, this situation is no different than other cases. Your wife is upgrading her pending I-485 to primary status and the AC21 rule always talk about the Primary applicant not the derivative.

1.When has she become primary? Answer : On the day USCIS acknowledges the request letter for upgradation ( which is also called interfiling).

2. When will AC21 applicable ? Answer : on completion of 180 days as primary applicant

3. Has she completed 180 days as primary? Answer : No

4. Can she change job before completing 180 days as primary : No

5. She has completed 180 days as dependent applicant, will it count : No

6. Husband and Wife's application are already verified by the Immigration officer, does it need another adjudication ? Yes . Those applications have to be adjudicated again with wife as primary applicant .

Interfiling just replaces the requirement of filing new I-485 applications for your wife as primary and you as dependent. *
Thanks

[Desi Dude]

Thanks a lot Kanmani. You have been very helpful. The only concern I had was #4 in your response.

She can actually change job before 180 days, but not the sponsor. It's a risk, but the law doesn't stop her from changing employer (especially if she has good relations with the employer).

[Kanmani]

I'll put the #4 like this with what law says in this situation


4. Can she change job before completing 180 days as primary : YES and No

YES : Job changed before 180 days -------> Applicant by law has to work for the GC sponsor after receiving Green Card. (AC21 not protected)

NO : Job changed after 180 days -------> Applicant by law not required to join the GC sponsor after receiving Green Card. (AC21 protected)

[Desi Dude]

You are right, however, if the job is changed before 180 days and then AC21 evoked after 180 days, she won't have to work with the original employer ever.

[Desi Dude]

I'm confused now. What will happen if she changes employer but the original employer doesn't revoke I-140.

[Pedro Gonzales]

I'm confused now.

You and everyone else that's read this thread, man.

[pdfeb09]

1. Does anyone know what kind of documents would the New Employer have to provide if there was an RFE after AC21 option was exercised?

2. What can the USCIS ask the new employer to prove?

3. Would the new employer have to prove that they tried to recruit a citizen and failed?

4. How about the financial information?

Kanmani, I am hoping you would be able to throw some govt. documents at me and explain them a bit.:)

[qesehmk]

pdfeb - I can tell you with certainty that #3 is NOT a requirement. So rest assured there.

I will let others answer the rest of your questions.


1. Does anyone know what kind of documents would the New Employer have to provide if there was an RFE after AC21 option was exercised?

2. What can the USCIS ask the new employer to prove?

3. Would the new employer have to prove that they tried to recruit a citizen and failed?

4. How about the financial information?

Kanmani, I am hoping you would be able to throw some govt. documents at me and explain them a bit.:)

[Kanmani]

pdfeb09,

Your questions are very important before considering the job change, but I neither have real time experience in the subject nor have answers for them . Here are some links which may be useful for you


http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1efbac8ec3d2f210VgnVCM100000082ca60aRCR D&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190a RCRD
http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm122705.pdf

http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/ac21_30may08.pdf

http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm051205.pdf

PS: I like to see someone who have actually availed AC21 portability to respond to your questions.

[pdfeb09]

pdfeb - I can tell you with certainty that #3 is NOT a requirement. So rest assured there.

I will let others answer the rest of your questions.

Q,

Thanks for the response. In fact, after I posed a few questions on this forum, I went hunting for the answers myself. I have reproduced below what I understood from the various memos.

SOURCE: AC21 Aytes Memo 27Dec2005 (http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm122705.pdf) has a lot of good information.

1. The new employer usually does not have to provide any documents besides the standard EVL that establishes the job duties, the pay and the intent of the employer to keep the employee on the payroll after GC is issued.
2. USCIS "may" ask the employer to prove that their business is legitimate (prove that their business exists outside the aliens' requirements and position) and that the employee will NOT become a public charge. It comes close to proving the "Ability To Pay" as in I140 application. If the new employer is pretty well-known, there is a less chance of this being asked.
3. As Q has answered, the new employer is NOT required to prove that they went through the same hassles. All they need is an intent to employ you and ability to pay you.
4. See 2 and 3 above. They may have to submit financial documents to prove the legitimacy of the business and to prove that the employee will not be a public charge.

As for some questions posted by me in the Calculations and Predictions Thread (And now Deleted from there to maintain the sanctity of the thread):

1. AC21 protects the I485 application after 180 days from the receipt date of application, in case of a job change, right?
2. What happens if, once eligible for AC21, a person loses/quits his job and is unemployed for some period of time?
3. Can a person take up another job, with similar description and role, after a gap of say a few months but before his time to receive a GC comes by?
4. Is continuous employment absolutely essential (and may be required to be proven) post 180 days after filing?

Kanmani's Reply to 1.

" pdfeb09,
1. Yes. Attorneys are counting 180 days by excluding the RD . I have no comments for the rest of your doubts. "

2.,3. and 4. are really similar and so the reply, as I understand it is:

It is NOT absolutely mandatory to have a continuous employment after 180 days have passed since you applied for your I 485. However, it is absolutely mandatory that you have a legitimate job offer in hand from a provable legitimate business when your I485 is adjudicated.

Since the actual adjudication can take place at any time, and since USCIS may issue an RFE at that time for an EVL, it is good to have the next job as soon as possible for as long as possible. It is NOT advisable to stay without a job during the period.

It is also possible to be Self-Employed, so long as you can prove your business is legit and that you will be able to sustain your salary.

If you file for AC21 once you change a job, and it is very advisable that you do, then USCIS may adjudicate your pre-adjudicated file again with this new information and can issue an RFE for the legitimacy of business and offer, and so there will be 2 adjudications in such as case. You should have a legitimate job offer at each time.

If your previous employer Revokes your I140, even after 180 days have passed since you applied for I485, USCIS will immediately issue a NOID .. you must submit AC21 relevant information along with a legit offer within 30 days to avoid getting rejected. This whole thing can be avoided if you file the AC21 related documents as soon as you change jobs.

It is not essential to wait with the employer for 180 days after filing I485 to invoke AC21. You could do it on the next day !!! However, if the employer revokes your I 140 within the 180 days period, your AC21 and consequently your I485 will be automatically denied !!

SO even if it is not essential, it is strongly advisable to stay with the employer for at least 180 days after filing I 485.

I AM NOT A LAWYER. THESE ARE MY OPINIONS AND SHOULD NOT BE CONSTRUED AS A LEGAL ADVICE !

[pdfeb09]

pdfeb09,

Your questions are very important before considering the job change, but I neither have real time experience in the subject nor have answers for them . Here are some links which may be useful for you

PS: I like to see someone who have actually availed AC21 portability to respond to your questions.

Thanks Kanmani. I did some research. It may not be as good as some of you guys do here, but it may help someone.

[SmileBaba]

I have PD of DEC 2007 EB2I with employer A. I worked for Employer A from Dec 2006 to Dec 2011, and joined employer B in Dec 2011. I filed I485 with agreement from Employer A during April 2012 with intent of joining them after I receive my GC.
I was wondering if I can legally file AC21 after 180 days of filing I485 and continue working for employer B. What will be the advantages of filing or not filing AC21 if I wish to continue working for Employer B even after receiving GC thru Emplyer A GC petition.
Your inputs and feedback will be highly appreciated. thanks in advance.

[qesehmk]

smilebaba - I hope I am wrong - but AC21 was meant for those people who would've been working for an employer for those 180 days (since filing of 485) and now want to leave that employer.

In your case 180 days would be passed but hte condition of having worked for employer A during those 180 days wouldn't be passed.

I am not sure how cut and dry teh law is. I am sure there must be some room for interpretation though.


I have PD of DEC 2007 EB2I with employer A. I worked for Employer A from Dec 2006 to Dec 2011, and joined employer B in Dec 2011. I filed I485 with agreement from Employer A during April 2012 with intent of joining them after I receive my GC.
I was wondering if I can legally file AC21 after 180 days of filing I485 and continue working for employer B. What will be the advantages of filing or not filing AC21 if I wish to continue working for Employer B even after receiving GC thru Emplyer A GC petition.
Your inputs and feedback will be highly appreciated. thanks in advance.

[SmileBaba]

Thanks for the reply Q.
It's a shame that there is no definite language on this law and the blood-sucking lawyers like this fact to suck blood out of us.

[pdfeb09]

Thanks for the reply Q.
It's a shame that there is no definite language on this law and the blood-sucking lawyers like this fact to suck blood out of us.

SmileBaba,

So far as I understand, if Employer A did not revoke your I140 petition during the 180 days since you filed I485, then you are good !

I say that because, when the Employer A filed your labor and I140, there was every intention on the employer's part to employ you. There was every intention on your part to join the employer (at least on paper).

If, after 180 days of filing I485, you decide to work for Employer B, you are allowed to do so under AC21. Make sure that Employer B is willing to establish that the business is legit and that they are well off to pay you.

You should invoke AC21 ASAP if you have completed your 180 days, because if the Employer A senses that you are not coming back, he/she may revoke your I140 (even if it is past 180 days since you filed 485). If the employer revokes I140 before you file AC21, USCIS will send you a NOID(Notice of Intention to Deny), at which point you will have to submit all the AC21 related documents anyways. Better do it before USCIS goes through the hassle and treats your case with extra caution.

I just noticed that you filed in April 2012. I would suggest NOT to tick your employer A off until the 180 days deadline passes. But make sure you do the right AC21 procedure after that if you do not intend to go back to Employer A.

Of course, you MUST CONSULT A LAWYER and get his/her advice.

I AM NOT A LAWYER AND THIS IS JUST MY OPINION, NOT A LEGAL ADVICE.

[pdfeb09]

smilebaba - I hope I am wrong - but AC21 was meant for those people who would've been working for an employer for those 180 days (since filing of 485) and now want to leave that employer.

In your case 180 days would be passed but hte condition of having worked for employer A during those 180 days wouldn't be passed.

I am not sure how cut and dry teh law is. I am sure there must be some room for interpretation though.

Q,

So far as I understand, AC21 is a provision for the people who do not want to join the petitioning employer, despite the initial intention to do so, because sufficient time has elapsed since the intention was first proclaimed. You do not have to be working with your petitioning employer so long as there was a provable intent on both the sides at the time of petition (and at the time of filing I485). AC21 is required to communicate to the USCIS that the intention has now changed. So long as the beneficiary is filling up a "Same Or Similar" job position at another legitimate employer, the Adjustment of Status procedure would be carried out without a problem, barring other issues.

Long story short, the employee does not have to be working for the petitioning employer to invoke AC21. But the employee must invoke AC21 to let USCIS know that the petitioning employer is no more in picture and that another employer will be keeping the employee off the public charge.

AGAIN, I AM NOT A LAWYER AND THIS IS NOT A LEGAL ADVICE.

[Kanmani]

Q,

So far as I understand, AC21 is a provision for the people who do not want to join the petitioning employer, despite the initial intention to do so, because sufficient time has elapsed since the intention was first proclaimed. You do not have to be working with your petitioning employer so long as there was a provable intent on both the sides at the time of petition (and at the time of filing I485). AC21 is required to communicate to the USCIS that, even though there was an intent on both the sides to work together at the time of I140 and I485, since there has been 6 months, the intention has now changed. So long as the beneficiary is filling up a "Same Or Similar" job position at another legitimate employer, the Adjustment of Status procedure is carried out without a problem, barring other issues.

Long story short, the employee does not have to be working for the petitioning employer to invoke AC21. But the employee must invoke AC21 to let USCIS know that the petitioning employer is no more in picture and that another employer will be keeping the employee off the public charge.

AGAIN, I AM NOT A LAWYER AND THIS IS NOT A LEGAL ADVICE.

pdfeb09,

Whenever an I-485 is filed for future employment, the beneficiary cannot avail this flexibility . This is how the lawyers have interpreted the law which is now in practice.

j) JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE- A petition under subsection (a)(1)(D)for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.”.

(2) Section 212(a)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)(A))is amended by adding at the end the following new clause:

“(i v) LONG DELAYED ADJUSTMENT APPLICANTS- A certification made under clause (i) with respect to an individual whose petition is covered by section 204(j) shall remain valid with respect to a new job accepted by the individual after the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the certification was issued.”.

The law permits to change jobs/employers. But it doesn't provide any information about not joining the employer at all. My opinion is that , whenever an employer in the above situation challenges the employee (future employment) for GC fraud, the AC21 rule cannot be applied for protection.

[pdfeb09]

pdfeb09,

Whenever an I-485 is filed for future employment, the beneficiary cannot avail this flexibility . This is how the lawyers have interpreted the law which is now in practice.

j) JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE- A petition under subsection (a)(1)(D)for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.”.

(2) Section 212(a)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)(A))is amended by adding at the end the following new clause:

“(****) LONG DELAYED ADJUSTMENT APPLICANTS- A certification made under clause (i) with respect to an individual whose petition is covered by section 204(j) shall remain valid with respect to a new job accepted by the individual after the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the certification was issued.”.

The law permits to change jobs/employers. But it doesn't provide any information about not joining the employer at all. My opinion is that , whenever an employer in the above situation challenges the employee (future employment) for GC fraud, the AC21 rule cannot be applied for protection.

Kanmani,

With all due respect, the "Jobs" here actually refer to the "Job Offer" that was used while applying for the Labor and filing I140. The rule deals with the "Job Offer" that was given to the (future) employee.

If you read through the various memos, and the wordings on USCIS and other gov. sites, (Most of the sources referred by you) you will NOT find it referring to "existing employer" as in one where the employee is "currently working" .. it refers to "Change Of Jobs" .. but not to the existing relationship....

Of course, the Lawyers can interpret it the way they want and they are really the ones to "defend" (may be) your case if the hell breaks loose.. However, GC IS for future employment and there is "NO" requirement like the employer-employee relationship for the Labor and I140 to be filed ... there needs to be an intent of such a relationship while filing the labor and I140....

AC21 allows you to take up a job with a different employer, even if your petition is filed by a different one, provided you have I485 pending for a long time (6 months = 180 days) ..


Answer these questions(Granted, the questions are kind of theoretical, but valid in my opinion):
Do you have to be employed for your GC to be filed under EB category? -- My answer is "NO". You could be on H4 and some employer can file the labor and I140 and even I485 for you.
What happens in case where Labor,I140 and I485 are all filed for a person NOT on any work permit, but legally in US, and 180 days have passed? Is AC21 applicable in such a case? ----- My answer is "YES".
Who is Employer 1 in the above case and what does a "Job change" mean in this situation with regards to AC21?


As for the challenge of the employer claiming GC fraud, the 180 days period covers that in my opinion. Now, the USCIS may take a closer look at the other aspects of the application. However, I do not think revoking I140 to claim that there was a GC fraud after 180 days will work in the employer's favor.

The employer 1 has only one recourse. Make sure that the employee joins the company immediately after the EAD is issued to assess the intention. If the employee does not join the Employer with the EAD, the employer may revoke the I140 within 180 days. Failing to do so within the 180 days will set the the employee (sort of) free.

AGAIN, I AM NO LAWYER ... ( I will not be the one defending you in court if it comes to that, Nor is my lawyer's license at stake here ) THIS IS NOT A LEGAL ADVICE.

[qesehmk]

pdfeb - what you say below makes sense to me. I hope smilebaba will smile now :)

Q,

So far as I understand, AC21 is a provision for the people who do not want to join the petitioning employer, despite the initial intention to do so, because sufficient time has elapsed since the intention was first proclaimed.


Kanmani - the onus here would be on the law to lay out what would be excluded. Since the language as you mentioned doesn't specifically require smilebaba (or a candidate like him) to fulfil 180 days employment condition with teh petitioning employer.

[Kanmani]

pdfeb09,

I agree with you. The job referred is not the actual job but the job offer.

In contradiction the attorneys are advicing in the other way. As we had issues in filing I-485, we consulted two attorneys , both confirmed that whenever AOS is filled for future employment, we must join the sponsor and work for atleast 180 days after GC. At the time of our consultation, we were facing a potential merger of sister companies into one company. The lawyers said Ac21 portability rules vary case by case and adj by adj. So we were adviced to start a new GC in parallel . Anyway we didn't file as a future employee.


Thanks Q.

[SmileBaba]

Thanks for the detailed debate guys! Thanks PDFeb09, Kanmani & Q!
So based on debate can I safely assume that AC21 should be ok in my circumstances?

[pdfeb09]

pdfeb - what you say below makes sense to me. I hope smilebaba will smile now :)


Thanks Q.


pdfeb09,

I agree with you. The job referred is not the actual job but the job offer.

In contradiction the attorneys are advicing in the other way. As we had issues in filing I-485, we consulted two attorneys , both confirmed that whenever AOS is filled for future employment, we must join the sponsor and work for atleast 180 days after GC. At the time of our consultation, we were facing a potential merger of sister companies into one company. The lawyers said Ac21 portability rules vary case by case and adj by adj. So we were adviced to start a new GC in parallel . Anyway we didn't file as a future employee.

Thanks Q.

Kanmani,
Sorry to hear about the issues you faced. In this long drawn out process, we all tend to rely on our attorneys to make life changing decisions for us. Hopefully this will become easier in future.

I don't know how it would have played out while applying for I485, since AC21 protects your I485 after the fact.

Moreover, it is also a good idea to join the employer, if you have not already done so, and work for 6 months after GC. Only in the case of AC21, the employer you should join for at least 6 months is your new employer. But you would already be working for him anyways.

[pdfeb09]

Thanks for the detailed debate guys! Thanks PDFeb09, Kanmani & Q!
So based on debate can I safely assume that AC21 should be ok in my circumstances?

You are welcome !
Yes, So long as your current employer does not revoke your I140 within 180 days of filing I485. (This is a very simplistic answer. I believe you have an attorney to consult.)

[Kanmani]

pdfeb09, Q, SmileBaba,

Here is the document supporting pdfeb09's strong arguments......http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?CH=afm&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190a RCRD&vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD

"It should be noted that there is no requirement in statute or regulations that a beneficiary of a Form I-140 actually be in the underlying employment until permanent residence is authorized. Therefore, it is possible for an alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employed by the prior petitioning employer or the subsequent employer under section 204(j) of the Act."


PS: Consult your attorneys before taking decisions. End of the day, the initial decision is in the hands of the adjudicator. (Appeal headache is later)

[qesehmk]

Kanmani - you are our the best when it comes to digging out obscure info!! Great. Thanks.
pdfeb09, Q, SmileBaba,

Here is the document supporting pdfeb09's strong arguments...... http://www.uscis.gov/ilink/docView/A...html#0-0-0-375

"It should be noted that there is no requirement in statute or regulations that a beneficiary of a Form I-140 actually be in the underlying employment until permanent residence is authorized. Therefore, it is possible for an alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employed by the prior petitioning employer or the subsequent employer under section 204(j) of the Act."


PS: Consult your attorneys before taking decisions. End of the day, the initial decision is in the hands of the adjudicator. (Appeal headache is later)

[SmileBaba]

You guys Rock!

pdfeb09, Q, SmileBaba,

Here is the document supporting pdfeb09's strong arguments...... http://www.uscis.gov/ilink/docView/A...html#0-0-0-375

"It should be noted that there is no requirement in statute or regulations that a beneficiary of a Form I-140 actually be in the underlying employment until permanent residence is authorized. Therefore, it is possible for an alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employed by the prior petitioning employer or the subsequent employer under section 204(j) of the Act."


PS: Consult your attorneys before taking decisions. End of the day, the initial decision is in the hands of the adjudicator. (Appeal headache is later)

[qesehmk]

Kanmani - this might also mean that there practically is no waiting period after GC approval as long as those 180 days have passed.

The reason being - the whole of point of AC21 is really to ensure that the adjudicating officer knows that you have actually taken employment in same or similar field.

Once the officer has approved the petition - and a candidate takes up another same or similar job - who is that going to be verified by? So i would imagine that one can take another job on day 2 of GC approval. Again ... that may be risque, but that seems logical to me.

What do you and others think?


pdfeb09, Q, SmileBaba,

Here is the document supporting pdfeb09's strong arguments...... http://www.uscis.gov/ilink/docView/A...html#0-0-0-375

"It should be noted that there is no requirement in statute or regulations that a beneficiary of a Form I-140 actually be in the underlying employment until permanent residence is authorized. Therefore, it is possible for an alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employed by the prior petitioning employer or the subsequent employer under section 204(j) of the Act."


PS: Consult your attorneys before taking decisions. End of the day, the initial decision is in the hands of the adjudicator. (Appeal headache is later)

[Kanmani]

Q,


Attorneys do switch to a safe mode during consultation and are much under confident to challenge the vague portability rules or no one of us is willing to challenge the uscis at the cost of our peace of mind .

At this moment this is what the uscis had interpreted from the law and passed it on to the adjudicators. The same explanation is not in the law infact I tried and failed to find some relevant information in the AC-21 amendment language itself.

But, these guidelines may change time to time, at some point we may not be vigilant in digging documents and there will be an instance we may miss an interim memo circulated to the adjudicators which would withhold the current memo.

What do you think?

[pdfeb09]

pdfeb09, Q, SmileBaba,

Here is the document supporting pdfeb09's strong arguments...... http://www.uscis.gov/ilink/docView/A...html#0-0-0-375

"It should be noted that there is no requirement in statute or regulations that a beneficiary of a Form I-140 actually be in the underlying employment until permanent residence is authorized. Therefore, it is possible for an alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employed by the prior petitioning employer or the subsequent employer under section 204(j) of the Act."


PS: Consult your attorneys before taking decisions. End of the day, the initial decision is in the hands of the adjudicator. (Appeal headache is later)

Kanmani,

I don't know if you have some sixth sense or what .. but you are THE BEST ! I did not think we will find an exact wording on any of the govt. portals... but you are too good ...

I got the feeling for what I was saying by going through the memos primarily !! Especially the 27 Dec 2005 Aytes Memo ... it makes the intentions of AC21 very clear .. support that with the other memos and you get a good picture.

What you have found out is GOLD ! A BIG Thank You !

[pdfeb09]

Kanmani - this might also mean that there practically is no waiting period after GC approval as long as those 180 days have passed.

The reason being - the whole of point of AC21 is really to ensure that the adjudicating officer knows that you have actually taken employment in same or similar field.

Once the officer has approved the petition - and a candidate takes up another same or similar job - who is that going to be verified by? So i would imagine that one can take another job on day 2 of GC approval. Again ... that may be risque, but that seems logical to me.

What do you and others think?
Q, usually the 6 months post GC are recommended for a smooth operation during the Citizenship process 5 yrs later. I have no idea why that would matter, but that's what ppl. say and believe. OTOH I have a friend who changed not only his job, but also his entire field of working, exactly 1 week after getting his GC !!!


Q,


But, these guidelines may change time to time, at some point we may not be vigilant in digging documents and there will be an instance we may miss an interim memo circulated to the adjudicators which would withhold the current memo.

What do you think?

That is actually very true. AC21 is currently interpreted using a bunch of Memos only. The interpretation can change anytime and everybody MUST use caution while treading.

[qesehmk]

Very well put. I agree - especially to the "peace of mind" piece!!


Q,


Attorneys do switch to a safe mode during consultation and are much under confident to challenge the vague portability rules or no one of us is willing to challenge the uscis at the cost of our peace of mind .

At this moment this is what the uscis had interpreted from the law and passed it on to the adjudicators. The same explanation is not in the law infact I tried and failed to find some relevant information in the AC-21 amendment language itself.

But, these guidelines may change time to time, at some point we may not be vigilant in digging documents and there will be an instance we may miss an interim memo circulated to the adjudicators which would withhold the current memo.

What do you think?

pdfeb - we are on the same page. Thanks. I know there are many of us who wouldn't care much for citizenship. Ability to work without restrictions is a big plus in itself. But for those who do care it indeed is a good idea to wait 6 months.

[SmileBaba]

pdfeb09, Q, SmileBaba,

Here is the document supporting pdfeb09's strong arguments......http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?CH=afm&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190a RCRD&vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD

"It should be noted that there is no requirement in statute or regulations that a beneficiary of a Form I-140 actually be in the underlying employment until permanent residence is authorized. Therefore, it is possible for an alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employed by the prior petitioning employer or the subsequent employer under section 204(j) of the Act."


PS: Consult your attorneys before taking decisions. End of the day, the initial decision is in the hands of the adjudicator. (Appeal headache is later)

I'm getting a 404 while trying to open link. It was working yesterday.:confused:

[Kanmani]

"It should be noted that there is no requirement in statute or regulations that a beneficiary of a Form I-140 actually be in the underlying employment until permanent residence is authorized. Therefore, it is possible for an alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employed by the prior petitioning employer or the subsequent employer under section 204(j) of the Act."

http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?CH=afm&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190a RCRD&vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD

Adjudicator's Field Manual - Redacted Public Version ------> Table of contents---------------->Chapter 20.2 Petition validity

[SmileBaba]

"It should be noted that there is no requirement in statute or regulations that a beneficiary of a Form I-140 actually be in the underlying employment until permanent residence is authorized. Therefore, it is possible for an alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employed by the prior petitioning employer or the subsequent employer under section 204(j) of the Act."

http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?CH=afm&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190a RCRD&vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD

Adjudicator's Field Manual - Redacted Public Version ------> Table of contents---------------->Chapter 20.2 Petition validity

Thank you!
I have one more question on the attorney representation. Is it necessary or advisable to use same attorney for AC21 who is representing applicant for AOS?

[pdfeb09]

Thank you!
I have one more question on the attorney representation. Is it necessary or advisable to use same attorney for AC21 who is representing applicant for AOS?

I do not think it is "necessary" to use the same attorney. In fact, if the attorney has represented your previous employer in any way during the process, then the attorney may himself/herself decline to work with you for the AC21 purposes.

[SmileBaba]

Guys, I have one more concern on AC21 topic. My I140 was approved in 2008 for a salary equivalent to EB2 category in state of Nebraska.

Does it matter when I'll be filing AC21 with a company in California where I am currently drawing a salary which falls in EB3 category of California?

[SmileBaba]

I do not think it is "necessary" to use the same attorney. In fact, if the attorney has represented your previous employer in any way during the process, then the attorney may himself/herself decline to work with you for the AC21 purposes.
Thank you!

[pdfeb09]

Guys, I have one more concern on AC21 topic. My I140 was approved in 2008 for a salary equivalent to EB2 category in state of Nebraska.

Does it matter when I'll be filing AC21 with a company in California where I am currently drawing a salary which falls in EB3 category of California?

Believe it or not, this is a difficult one to answer. I want to say, the officer will probably disregard the geographic location and, hence, will probably disregard the prevailing wage information specifically because it is an AC21 situation.
While adjudicating the AC21 laced I485 application the adjudicating officer is supposed to make sure that the job/role is "Same or Similar". If you are good on the 2 out of the 3 criteria listed below (A,B and C in Q3), you may be ok.
Whether to compare your salary to the prevailing wage or not is his/her discretion and frankly, we cannot be certain. I am inclined towards thinking positively, but what happens when a person, with similar job changes, drew salaries at par with the prevailing wages in both these states? Would the discrepancy matter? I don't know.

Following are the excerpts from the Aytes Memo (http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm122705.pdf)



Question 3. What is “same or similar” occupational classification for purposes of I-140 portability?
Answer: When making a determination if the new employment is the “same or similar” occupational classification in comparison to the employment in the initial I-140, adjudicators should consider the following factors:
A. Description of the job duties contained in the ETA 750A or the initial I-140 and the job duties of the new employment to determine if they are the “same or similar” occupational classification.
B. The DOT code and/or SOC code assigned to the initial I-140 employment for petitions that have a certified ETA 750A or consider what DOT and/or SOC code is appropriate for the position for an initial I-140 that did not require a certified ETA 750A. Then consider the DOT code and/or SOC code, whichever is appropriate for the new position to make a determination of “same or similar” occupational classification.
C. A substantial discrepancy between the previous and the new wage. (See Question 5 of this section for further clarification).

Question 4. Should service centers or district offices use a difference in geographic location
of the employment in the approved labor certification and initial I-140, and the new
employment as basis for denial in I-140 portability cases?
Answer: No. The relevant inquiry is if the new position is the same or similar occupational classification
to the alien’s I-140 employment when considering the alien’s new position and job duties and not the
geographic location of the new employment.

Question 5. Should service centers or district officers use a difference in the wage offered
on the approved labor certification and initial I-140, and the new employment as basis
for denial in adjustment portability cases?
Answer: No. As noted above the relevant inquiry is if the new position is the same or similar
occupational classification to the alien’s I-140 employment. A difference in the wage offered on the
approved labor certification, initial I-140 and the new employment cannot be used as a basis of a
denial. However, a substantial discrepancy between the previous and the new wage may be taken
into consideration as a factor in determining if the new employment is “same or similar.”



THIS IS NOT A LEGAL ADVICE. PLEASE CONSULT YOUR ATTORNEY BEFORE YOU MAKE ANY DECISION.

[SmileBaba]

Believe it or not, this is a difficult one to answer. I want to say, the officer will probably disregard the geographic location and, hence, will probably disregard the prevailing wage information specifically because it is an AC21 situation.
Thanks PD! I know this one is little tricky.

[reachme_s]

Friends,

Can you please help me in this situation?

I'm working for a consultant company A, who had filed my labor, I140 earlier and I485 recently. It's been more than 6 months since I485 was filed and now the client(company B) that I'm working for wants to hire me. So, technically my job profile is going to remain the same. However, as part of this deal, my salary would change significantly. Can you please let me know what are things that I've to check and make sure before I take this offer.

I read in this thread and other places too that the job description should be "same or similar". Is it enough if I get the same job description from company B same as what was provided by company A earlier when they filed I140?

Or is there anything else that I've to make sure of, before I take the offer?

Greatly appreciate your help!

[pdfeb09]

Friends,

Can you please help me in this situation?

I'm working for a consultant company A, who had filed my labor, I140 earlier and I485 recently. It's been more than 6 months since I485 was filed and now the client(company B) that I'm working for wants to hire me. So, technically my job profile is going to remain the same. However, as part of this deal, my salary would change significantly. Can you please let me know what are things that I've to check and make sure before I take this offer.

I read in this thread and other places too that the job description should be "same or similar". Is it enough if I get the same job description from company B same as what was provided by company A earlier when they filed I140?

Or is there anything else that I've to make sure of, before I take the offer?

Greatly appreciate your help!

Reachme_s,

The salary difference is NOT looked at independently as a determining criteria. If your job offer is the "Same or Similar" based on the first 2 criteria (See my previous post), then you are OK.
I assume there is no issue with a non-compete, or "Not to join the client within one year" .. kind of contract between you and the company A .. that matter is beyond the scope of, and is independent of , AC21.


DISCLAIMER: You know, the usual .. I am not a lawyer and you should find one .. :)

[reachme_s]

Reachme_s,

The salary difference is NOT looked at independently as a determining criteria. If your job offer is the "Same or Similar" based on the first 2 criteria (See my previous post), then you are OK.
I assume there is no issue with a non-compete, or "Not to join the client within one year" .. kind of contract between you and the company A .. that matter is beyond the scope of, and is independent of , AC21.


DISCLAIMER: You know, the usual .. I am not a lawyer and you should find one .. :)

Thanks for your input pdfeb09.

I'm also planning to check with an attorney on this. But somehow I feel that the info here in this forum has been more clear, than what an attorney would say.

On the contract, I've been with working for the same client(Company B) and company A for more than 9 years now. So, both comp A and B are ready for this, since both the companies are aware of the fact and I'm the one who's been holding this, hoping for the dates to become current. But now since the dates are not going to be current any time soon, want to pursue it.

[SmileBaba]

Guys, I have one more concern on AC21 topic. My I140 was approved in 2008 for a salary equivalent to EB2 category in state of Nebraska.

Does it matter when I'll be filing AC21 with a company in California where I am currently drawing a salary which falls in EB3 category of California?

Guys, Is it necessary to join my current employer on EAD after AC21 or I can continue working on H1B? (I have a PD of Eb2I Dec 07, and have left sponsoring employer on Dec, 2011 and joined client as full-time employee).
Also for AC21 what all documents does attorney asks for? Is just a copy of approved I-140 enough or they will need PERM related documents as well?

[pdfeb09]

Guys, Is it necessary to join my current employer on EAD after AC21 or I can continue working on H1B?(I have a PD of Eb2I Dec 07, and have left sponsoring employer on Dec, 2011 and joined client as full-time employee).

If you have invoked AC21, you can work for your current(new) employer on EAD. If your current employer files for H1B transfer (based on your approved I140), I think you can work on H1B (Kanmani has a better idea about this).
You do not have to join your petitioning employer if you have invoked AC21 (post 180 days of filing I485).


Also for AC21 what all documents does attorney asks for? Is just a copy of approved I-140 enough or they will need PERM related documents as well?
The attorney may ask for everything (Perm, H1B, Degrees, exp letter, approved I140, I485 receipts, EADs ..everything) so be ready to provide everything.
To invoke AC21, all you really need is the approved I140, I485 Receipt Notices and EAD. However, the attorney may want to see the actual Ads that were published by the petitioning employer along with the labor that was filed to ensure that your new job is "Same or Similar".

Good luck !

Disclaimer: ...the usual .. find yourself a lawyer as I am not one.

[SmileBaba]

If you have invoked AC21, you can work for your current(new) employer on EAD. If your current employer files for H1B transfer (based on your approved I140), I think you can work on H1B (Kanmani has a better idea about this).
You do not have to join your petitioning employer if you have invoked AC21 (post 180 days of filing I485).

The attorney may ask for everything (Perm, H1B, Degrees, exp letter, approved I140, I485 receipts, EADs ..everything) so be ready to provide everything.
To invoke AC21, all you really need is the approved I140, I485 Receipt Notices and EAD. However, the attorney may want to see the actual Ads that were published by the petitioning employer along with the labor that was filed to ensure that your new job is "Same or Similar".

Good luck !

Disclaimer: ...the usual .. find yourself a lawyer as I am not one.

Thanks PD! My current employer is on the verge of renewing my H1B (beyond 6 years using previous employer approved I140) which very well be done before completion of 180 days after I485 filing.
My current employer doesn't know that I have filed I485 and have EAD with me. In that case they might well ask me to use EAD. And I don't want to do that, since It's always safe to be on H1B until you get GC approval.
That's the reason why I was thinking of filing AC21 early 2013 and continue working on H1B (for being safe in case anything goes wrong with approval of I485).
If that's possible I can get AC21 done early 2013 and be worry free about GC approval and continue working for current employer after GC approval. Asking too much..ehh? :P

thanks for sharing your knowledge of documents required for filing AC21.

[gc4me2012]

Hello,

I am in a tough situation and not sure how to handle it. I work for Company B on H1B and my GC was filed with Company A as a future employment. I received EAD from Comapny A and they asked me to join on EAD. I refused to join on EAD and told them I will join after getting GC. My future employer didnt like it and he hasnt been responding to my emails and calls.

I received an RFE and USCIS is asking for employment verification letter for current job. Since my future employer is not responding, can I invoke AC21 and transfer my GC to my current employer Company B who is holding my H1B?

My I485 receive date was June 5th, so my 180 days will be over after first week of Dec. Please help me and advise how I can continue with this GC.

Also, after doing AC21, do I lose the H1B status automatically?

Can someone please advise me on this?

Thank you so much for your help.

[qesehmk]

gc4me - you probably are in small pickle but let me share what I understand and you make the decision.
1. AC21 is applicable when your current employer has sponsored your GC. Not sure if it applies for hte situation when current employer is NOT the sponsor.
2. Regardless of whether #1 is true or false - invoking AC21 doesn't require you to use EAD. AC21 only ensures continuity of your GC application. It doesn't speak about what kind of work authorization you are / should be using. In short - that shouldn't affect your H1B status.

If I were you - I would ask the future employer to have a join date AFTER first week of December. They would've agreed and you would be safe just in case something changed.

All the best!


Hello,

I am in a tough situation and not sure how to handle it. I work for Company B on H1B and my GC was filed with Company A as a future employment. I received EAD from Comapny A and they asked me to join on EAD. I refused to join on EAD and told them I will join after getting GC. My future employer didnt like it and he hasnt been responding to my emails and calls.

I received an RFE and USCIS is asking for employment verification letter for current job. Since my future employer is not responding, can I invoke AC21 and transfer my GC to my current employer Company B who is holding my H1B?

My I485 receive date was June 5th, so my 180 days will be over after first week of Dec. Please help me and advise how I can continue with this GC.

Also, after doing AC21, do I lose the H1B status automatically?

Can someone please advise me on this?

Thank you so much for your help.

[gc4me2012]

Thanks qesehmk for your response. I apologize if I am submitting this second time but I couldnt find the message I posted in response to your answer.

My understanding for GC is it is for future employment and I have never worked for my petitioning employer. Having said that, I dont know how to interpret your statement "AC21 is applicable when your current employer has sponsored your GC. Not sure if it applies for hte situation when current employer is NOT the sponsor." I have not heard about this. I am not questioning you but only asking if you are sure about this? Does this mean, I can not use AC21 now?

Thanks so much.

[pdfeb09]

Hello,

I am in a tough situation and not sure how to handle it. I work for Company B on H1B and my GC was filed with Company A as a future employment. I received EAD from Comapny A and they asked me to join on EAD. I refused to join on EAD and told them I will join after getting GC. My future employer didnt like it and he hasnt been responding to my emails and calls.

I received an RFE and USCIS is asking for employment verification letter for current job. Since my future employer is not responding, can I invoke AC21 and transfer my GC to my current employer Company B who is holding my H1B?

My I485 receive date was June 5th, so my 180 days will be over after first week of Dec. Please help me and advise how I can continue with this GC.

Also, after doing AC21, do I lose the H1B status automatically?

Can someone please advise me on this?

Thank you so much for your help.

gc4me2012,

If the employer, who has petitioned for you (the GC Sponsorer), has not revoked your I140 by the time you cross the 180 days-post-I485 hurdle, then you can invoke AC21 and work for your current employer. I think, I am not sure, you will have to use EAD to work for your current employer under the AC21 rule when you invoke it. (cannot be done within the 180 days of I485).

If you have an RFE regarding the GC process for the EVL, then it must be your petitioning employer who must answer it.

If your RFE is for your current H1, then your current employer must answer it.

If your RFE is just to prove that you are here legally, then your current employer can answer it.

If you have NOT invoked the AC21 yet, may be because 180 days have not yet passed since you sent in your I 485, then you cannot use your current employer to answer the RFE for GC.

I wish I could be more positive, but unless your petitioning employer has NOT revoked your I 140 and you are past 180 days after 485, your case is tough.

Talk to an attorney immediately.

[gc4me2012]

Thanks so much for your response.
The RFE is on I485 to prove the employment is still available. So yes, they are asking for EVL.

[qesehmk]

gc4me - sorry for the delay in my response. I am saying I am not sure if you are eligible for AC21. The reason is - AC21 as I know it - is meant for situation where an employee is working for the sponsor for more than 180 days past 485 filing AND with an approved 140. It is possible (but I am not sure) that AC21 also extends to situations where the employee is NOT working for the sponsor yet but 180 days have passed since 485 filing and 140 is approved.

I am really not sure. However I am quite sure that AC21 doesn't require use of EAD. You can join the new employer by moving your current H1 to new employer.
Does that make it clear?

Thanks qesehmk for your response. I apologize if I am submitting this second time but I couldnt find the message I posted in response to your answer.

My understanding for GC is it is for future employment and I have never worked for my petitioning employer. Having said that, I dont know how to interpret your statement "AC21 is applicable when your current employer has sponsored your GC. Not sure if it applies for hte situation when current employer is NOT the sponsor." I have not heard about this. I am not questioning you but only asking if you are sure about this? Does this mean, I can not use AC21 now?

Thanks so much.

[gc4me2012]

Thanks so much for your response.

One more question if you can answer please with respect to below scenario which pertains to me.

Company A filed for GC as future employment and I have never worked with them.
Received EAD and Company A is not willing to hire.
I currently work for Company B on H1B.

1. Can Company B file AC21 and I continue to work on H1B for them until GC is approved?
2. If Company B doesn't do AC21, can a Company C do AC21 without having me join them on EAD or H1B? And once GC is approved I can join Company C on GC?

[qesehmk]

gc4me - it's ok if A is not willing to hire now. But the fact they haven't closed your GC process means they intend to hire post GC approval. So make sure that the intent to hire in good faith exists at least until after 180 days since filing 485.

B or C in this scenario are not different at all. So if you are eligible for AC21 then it doesn't matter with what company you invoke it. I would strongly recommend spending some money talking with a lawyer and understanding how to get AC21 done.

p.s. - Don't get disheartened. My gut feel is your GC should be safe. But a proper lawyer will tell you how exactly to ensure that.


Thanks so much for your response.

One more question if you can answer please with respect to below scenario which pertains to me.

Company A filed for GC as future employment and I have never worked with them.
Received EAD and Company A is not willing to hire.
I currently work for Company B on H1B.

1. Can Company B file AC21 and I continue to work on H1B for them until GC is approved?
2. If Company B doesn't do AC21, can a Company C do AC21 without having me join them on EAD or H1B? And once GC is approved I can join Company C on GC?

[gc4me2012]

Thanks so much for your response.
Yes, I have initiated this conversation with my lawyer and they havent responded yet.

So you think company C can do AC21 without me joining them and then once GC is approved, I can join them?

[dreamer]

Gurus/Friends,

My PD is 27 Sep 2008 and receipt date is 18 Jan 2012. I am thinking about using AC21. I have few questions around same or similar job and would really appreciate your input in this regard

I am working for a client (Company B) through Consulting Company (Company A). Company A have sponsered my GC and its been more than 1 year since I-485 was filed. I have a great FTE opportunity with the client. According to my labor, my current title is Computer Systems Analyst (SOC:15-1121) and available job is IT Architect. I will still be an individual contributor, job description might be slightly different and pay might be considerably higher. I have below questions before considering with this option.

Is this considered to be similar job?
Do we have to notify USCIS on job change?
If we do, do we have to wait for a Response from INS informing the AC21 has been accepted or denied to take the new job?
Pros and Cons of AC21?



I really appreciate your help & time in this regard!!

Thanks.

[SmileBaba]

I have PD of DEC 2007 EB2I with employer A. I worked for Employer A from Dec 2006 to Dec 2011, and joined employer B in Dec 2011. I filed I485 with agreement from Employer A during April 2012 with intent of joining them after I receive my GC.
I was wondering if I can legally file AC21 after 180 days of filing I485 and continue working for employer B. What will be the advantages of filing or not filing AC21 if I wish to continue working for Employer B even after receiving GC thru Emplyer A GC petition.
Your inputs and feedback will be highly appreciated. thanks in advance.

"It should be noted that there is no requirement in statute or regulations that a beneficiary of a Form I-140 actually be in the underlying employment until permanent residence is authorized. Therefore, it is possible for an alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employed by the prior petitioning employer or the subsequent employer under section 204(j) of the Act."

http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?CH=afm&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190a RCRD&vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD

Adjudicator's Field Manual - Redacted Public Version ------> Table of contents---------------->Chapter 20.2 Petition validity

Friends,
Spoke to Ron yesterday. As per him, it is not advisable to file AC21 as it can lead to absurd rfe's. He said it is not required to file AC21, but USCIS likes you to file.
He said (and as Kanmani's find illustrates) as long as the applicant had good intention of working with future employer and the employer had a genuine position available at the time of filing I-485 and during 180 days period after the I-485 filing, the applicant is free to work with any other employer even if he has never worked with the petitioner.
He mentioned he doesn't like the idea of filing AC21.

[SmileBaba]

Friends,
Spoke to Ron yesterday. As per him, it is not advisable to file AC21 as it can lead to absurd rfe's. He said it is not required to file AC21, but USCIS likes you to file.
He said (and as Kanmani's find illustrates) as long as the applicant had good intention of working with future employer and the employer had a genuine position available at the time of filing I-485 and during 180 days period after the I-485 filing, the applicant is free to work with any other employer even if he has never worked with the petitioner.
He mentioned he doesn't like the idea of filing AC21.

Friends,
Please share your views and concerns (if any) on my situation. I know at the end of the day it's my call, but even a thought of mishap scares me to death.

[incredible]

I actually know couple of my really good friends who were in this situation earlier and did file AC-21. I think it can be taken as below

a. When the dates become Current, in the list of cases that USCIS randomly checks (and potentially issues RFE), if your case comes to them, you might have a to file AC-21 at that time along with EVL etc.
b. There is also a possibility that, when your case becomes Current and USCIS doesn't care about job change etc and may issue a GC (this is also assuming the underlying I-140 is not revoked)
c. If we file AC-21 at the time of job change (without Dates being Current), it will be stored in the candidate's file (along with other documents), again it is up to USCIS discretion whether to issue an RFE or not when the case becomes current. It will be an easier RFE if it issues since they already have the AC-21 with them.

Nevertheless, I believe almost all lawyers are divided in this, some say it is better to file Ac-21 during job change and some others say it is only required when USCIS asks for it. I am going to file AC-21 later this month and changing my job in July. I am going to ask some specific questions about my case in my next post.


Friends,
Please share your views and concerns (if any) on my situation. I know at the end of the day it's my call, but even a thought of mishap scares me to death.

[incredible]

Hi Gurus
I have a case that I need some one to take a look at. I worked for Company A for the major part of last 6 years. Company A also filed for my EB2I GC back in 2010 (PD : 02/01/2010). I got my I-140 approved the same year. Later in 2011 I quit Company A and joined Company - B. Company - B then filed for Labor (new labor) in 2011 and got that approved by 2012 (took a long time unfortunately). By 2012 the dates advanced so much that I was left with an option of not utilizing the dates being current (in March/April 2012) or talking with Company - A and asking them to file I-485. Company - A expressed willingness to file for I-485 (I-140 was not revoked) if I join them back. I joined Company - A back in 2012 and had my I-485 filed. I got my EAD and then gotten it renewed as well earlier this year. Now I have an offer from Company - C which looks promising but they asked me to manage my Immigration myself. They were OK to provide any documents required but not willing to provide me an attorney.
Also Company - C said that they will not transfer/file H1B (i have H1B as well all these years) and I have to join them on EAD. I might also have to travel to India later this year on Business (from Company - C).
This being said, I am going to file Ac-21 and join Company - C.
What are the things that I need to take care, especially since I am going to be travelling to India and coming back on EAD/AP (and not on H1B) with Company - C? any specific thing that CBP may ask that I need to be prepared for ?
Thanks for your time.

I actually know couple of my really good friends who were in this situation earlier and did file AC-21. I think it can be taken as below

a. When the dates become Current, in the list of cases that USCIS randomly checks (and potentially issues RFE), if your case comes to them, you might have a to file AC-21 at that time along with EVL etc.
b. There is also a possibility that, when your case becomes Current and USCIS doesn't care about job change etc and may issue a GC (this is also assuming the underlying I-140 is not revoked)
c. If we file AC-21 at the time of job change (without Dates being Current), it will be stored in the candidate's file (along with other documents), again it is up to USCIS discretion whether to issue an RFE or not when the case becomes current. It will be an easier RFE if it issues since they already have the AC-21 with them.

Nevertheless, I believe almost all lawyers are divided in this, some say it is better to file Ac-21 during job change and some others say it is only required when USCIS asks for it. I am going to file AC-21 later this month and changing my job in July. I am going to ask some specific questions about my case in my next post.

[incredible]

I see no responses on this thread. Can someone answer what would be required by CBP when entering back into US, once job change is done on AC-21 ?

Hi Gurus
I have a case that I need some one to take a look at. I worked for Company A for the major part of last 6 years. Company A also filed for my EB2I GC back in 2010 (PD : 02/01/2010). I got my I-140 approved the same year. Later in 2011 I quit Company A and joined Company - B. Company - B then filed for Labor (new labor) in 2011 and got that approved by 2012 (took a long time unfortunately). By 2012 the dates advanced so much that I was left with an option of not utilizing the dates being current (in March/April 2012) or talking with Company - A and asking them to file I-485. Company - A expressed willingness to file for I-485 (I-140 was not revoked) if I join them back. I joined Company - A back in 2012 and had my I-485 filed. I got my EAD and then gotten it renewed as well earlier this year. Now I have an offer from Company - C which looks promising but they asked me to manage my Immigration myself. They were OK to provide any documents required but not willing to provide me an attorney.
Also Company - C said that they will not transfer/file H1B (i have H1B as well all these years) and I have to join them on EAD. I might also have to travel to India later this year on Business (from Company - C).
This being said, I am going to file Ac-21 and join Company - C.
What are the things that I need to take care, especially since I am going to be travelling to India and coming back on EAD/AP (and not on H1B) with Company - C? any specific thing that CBP may ask that I need to be prepared for ?
Thanks for your time.

[venkat]

Hello Gurus - Q/Kanmani/vizcard/Spec and Others... Need your expert opinion.

Please apologize for posting this question here..Please move it to the appropriate thread sometime tomorrow.

My PD is June 2008 (there is a possibility my date could be current in the next bulletin...)
I work for a Desi consulting company...Might get a good offer from another company this week. Say I accept the offer and join around the last week of August...

My question(s):

1. Should I file proactive AC21? Did anyone who filed AC21 recently get unnecessary RFE as suggested by some attorneys?

2. According to me the advantage of filing proactive AC21 is that it will minimize the possible RFE coming as a result of revocation of 140 by my current company. Is it correct?

3. Say my employer sends the 140 revocation request after my AC21 is already sent, would USCIS know to ignore it?

4. Basically I don't want to risk anything being so close to GC and with my case being most likely already pre-adjudicated.


Thanks in advance for your help!!!

Venkat

[Kanmani]

Hello Gurus - Q/Kanmani/vizcard/Spec and Others... Need your expert opinion.

Please apologize for posting this question here..Please move it to the appropriate thread sometime tomorrow.

My PD is June 2008 (there is a possibility my date could be current in the next bulletin...)
I work for a Desi consulting company...Might get a good offer from another company this week. Say I accept the offer and join around the last week of August...

My question(s):

1. Should I file proactive AC21? Did anyone who filed AC21 recently get unnecessary RFE as suggested by some attorneys?

2. According to me the advantage of filing proactive AC21 is that it will minimize the possible RFE coming as a result of revocation of 140 by my current company. Is it correct?

3. Say my employer sends the 140 revocation request after my AC21 is already sent, would USCIS know to ignore it?

4. Basically I don't want to risk anything being so close to GC and with my case being most likely already pre-adjudicated.


Thanks in advance for your help!!!

Venkat

I would suggest the following in view of high importance to peace of mind and nothing else.

Wait until the release of visa bulletin for a week to decide on accepting the offer.

If you are current by the September bulletin, wait for physical GC to make a move.

If you are not current, go ahead with submitting AC21 related documents and make a move.


Note: Whenever there is revocation request USCIS will sure revoke the I-140 irrespective of your secondary offer. Here plays the AC21 portability part that gives your immigrant visa petition another life based upon your new EVL.

1. I didn't come across one.
2. YES (may be)
3. answered in 'Note'
4. answered above

[Pedro Gonzales]

I would suggest the following in view of high importance to peace of mind and nothing else.
Wait until the release of visa bulletin for a week to decide on accepting the offer.
If you are current by the September bulletin, wait for physical GC to make a move.
If you are not current, go ahead with submitting AC21 related documents and make a move.


Good advice. I concur.

[vizcard]

While I generally wouldn't submit any docs unless asked for, in this case you might want - since it's a desi consulting company and my guess is that there generally is more scrutiny there. One other consideration is that even if you do submit the paperwork, you could still get a RFE. Finally, there is no official list of docs (or form) to be submitted so sending too many would just complicate things.

Regardless if you choose to file the AC21 paperwork or not, you should revoke the G28 permission (assuming you had an attorney apply on your behalf).

[harapatta2012]

AC21 -portability described by USCIS in simple words

I found this document where common question regarding porting are answered by USCIS.
http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm122705.pdf

[bvsamrat]

Great information

Thanks for sharing



AC21 -portability described by USCIS in simple words

I found this document where common question regarding porting are answered by USCIS.
http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm122705.pdf

[almost]

Gurus,
Quick question and I am not sure if this is the best place to ask or not but posting here to get a quick response; please feel free to move this to the appropriate thread when answered.

I am currently on EAD and moved jobs in April this year for career progression opting not to wait for the GC and had discontinued my H1 long before that. My current position is with a small publicly held firm and the AC21 was filed on joining. Now I have come accross another opportunity which can take things to a whole new level. There is an option to go contract W2 and corp to corp with obvious tax advantages with Corp to Corp; the catch is that i need to have my own (or spouse owned) corporation which is very very tempting due obvious tax benefits. I already have a small business which I can use for this but the AC21 might be tricky with that as I would end by working for my own corporation and that seems to be a bit of a grey area. The other option is to have my wife start a new corporation and I become an employee of the same and file an AC21 on that basis. I did some research and seems like Ron Witcher thinks that there is nothing wrong with either option.

Has anyone done this or knows anything about this? Appreciate if you guys could respond. Just for reference my PD is May 1st 2009.

Thanks

[vizcard]

Gurus,
Quick question and I am not sure if this is the best place to ask or not but posting here to get a quick response; please feel free to move this to the appropriate thread when answered.

I am currently on EAD and moved jobs in April this year for career progression opting not to wait for the GC and had discontinued my H1 long before that. My current position is with a small publicly held firm and the AC21 was filed on joining. Now I have come accross another opportunity which can take things to a whole new level. There is an option to go contract W2 and corp to corp with obvious tax advantages with Corp to Corp; the catch is that i need to have my own (or spouse owned) corporation which is very very tempting due obvious tax benefits. I already have a small business which I can use for this but the AC21 might be tricky with that as I would end by working for my own corporation and that seems to be a bit of a grey area. The other option is to have my wife start a new corporation and I become an employee of the same and file an AC21 on that basis. I did some research and seems like Ron Witcher thinks that there is nothing wrong with either option.

Has anyone done this or knows anything about this? Appreciate if you guys could respond. Just for reference my PD is May 1st 2009.

Thanks

Im not sure what a Contract W2 is but I guess you mean a 1099 and being self employed. From a GC perspective this is very dicey. As for opening a company in your wife's name, that might work but you have to have a good lawyer to make sure everything is clean both from the company registration and from the employment documentation.

Remember to check the legal, tax and accounting aspects of having employees at a company. There are some very specific requirements around insurance/worker's comp/payroll taxes. I also believe but not 100% certain the company will need to have tax withholdings i.e. file a W4.

[almost]

Im not sure what a Contract W2 is but I guess you mean a 1099 and being self employed. From a GC perspective this is very dicey. As for opening a company in your wife's name, that might work but you have to have a good lawyer to make sure everything is clean both from the company registration and from the employment documentation.

Remember to check the legal, tax and accounting aspects of having employees at a company. There are some very specific requirements around insurance/worker's comp/payroll taxes. I also believe but not 100% certain the company will need to have tax withholdings i.e. file a W4.

Viz,

Thanks for the reply. Contract W2 is the same as being an employee but with the understanding that the employment will terminate as soon as the specific engagement ends. Also, I am fully aware of the tax/insurance/worker's comp/payroll and other liabilities (and other headaches) of having a company as I already own a small one that is besides my FTE job (which I perform from a different location than my own business). Currently my job is what is responsible for my legal status, if you will.

In the future state, if I take up this other offer I would either be an employee (contract w2) or I can be a 'corp to corp' to them which not only gets a lot more money but also comes with very significant tax benefits.

So, coming back to my question, barring the taxation and other requirements for a company to legally function, is there any reason why I cannot work for a company owned by my wife (who is on GC EAD as my dependent) assuming that my job description remains similar to my labor certification. In theory my wife can own a business and employ anyone for it and in theory I can work for any legal employer as long as the nature of my job remains similar so IN THEORY there shouldn't be an issue....

I am only looking for an answer from the immigration perspective and it would be very helpful if anyone can shed light from this perspective or share any experiences. Please do assume that I will not go alone by what anyone says here and will seek professional advice before taking such a step however I do need to get some information while I am going through the process of pursuing the opportunity. Any help is appreciated.

Thanks

[Kanmani]

Viz,

Thanks for the reply. Contract W2 is the same as being an employee but with the understanding that the employment will terminate as soon as the specific engagement ends. Also, I am fully aware of the tax/insurance/worker's comp/payroll and other liabilities (and other headaches) of having a company as I already own a small one that is besides my FTE job (which I perform from a different location than my own business). Currently my job is what is responsible for my legal status, if you will.

In the future state, if I take up this other offer I would either be an employee (contract w2) or I can be a 'corp to corp' to them which not only gets a lot more money but also comes with very significant tax benefits.

So, coming back to my question, barring the taxation and other requirements for a company to legally function, is there any reason why I cannot work for a company owned by my wife (who is on GC EAD as my dependent) assuming that my job description remains similar to my labor certification. In theory my wife can own a business and employ anyone for it and in theory I can work for any legal employer as long as the nature of my job remains similar so IN THEORY there shouldn't be an issue....

I am only looking for an answer from the immigration perspective and it would be very helpful if anyone can shed light from this perspective or share any experiences. Please do assume that I will not go alone by what anyone says here and will seek professional advice before taking such a step however I do need to get some information while I am going through the process of pursuing the opportunity. Any help is appreciated.

Thanks




I know nothing in the subject, but you have promised that you will take these discussions as a matter of acquiring knowledge, I have the following,

Any employer who wishes to sponsor permanent resident ship to a foreign worker must prove his/her ABILITY TO PAY at least the existing prevailing wage. Would you be able to show evidences in that respect?

[pdfeb09]

Viz,

Thanks for the reply. Contract W2 is the same as being an employee but with the understanding that the employment will terminate as soon as the specific engagement ends. Also, I am fully aware of the tax/insurance/worker's comp/payroll and other liabilities (and other headaches) of having a company as I already own a small one that is besides my FTE job (which I perform from a different location than my own business). Currently my job is what is responsible for my legal status, if you will.

In the future state, if I take up this other offer I would either be an employee (contract w2) or I can be a 'corp to corp' to them which not only gets a lot more money but also comes with very significant tax benefits.

So, coming back to my question, barring the taxation and other requirements for a company to legally function, is there any reason why I cannot work for a company owned by my wife (who is on GC EAD as my dependent) assuming that my job description remains similar to my labor certification. In theory my wife can own a business and employ anyone for it and in theory I can work for any legal employer as long as the nature of my job remains similar so IN THEORY there shouldn't be an issue....

I am only looking for an answer from the immigration perspective and it would be very helpful if anyone can shed light from this perspective or share any experiences. Please do assume that I will not go alone by what anyone says here and will seek professional advice before taking such a step however I do need to get some information while I am going through the process of pursuing the opportunity. Any help is appreciated.

Thanks

Almost,

I wanted to refrain from commenting here as it will open you up for legal interpretations from the immigration point of view.. however, I wrote a long post about AC21 some time ago and that may help you here to get started ..

PLEASE BE ADVISED THAT YOU "WILL" NEED LEGAL REPRESENTATION FROM A COMPETENT LAWYER BEFORE YOU MAKE ANY DECISION !! ... The interpretations here are my own and are based on limited research .. I do not claim to know all the laws that govern these things..

Having said that I think it will be better if YOU incorporate a company as you are the primary for the GC process ... having a dependent start a corp and hire the primary may not be supported by the law ..

As per my interpretation of the Ayte's memo and other documents related to AC21 ... you can start your own firm and be employed by it at the same time ... so long as the firm is legit, financially viable/sustainable and your Job there is same/similar to your initial perm/140, you should be able to adjust your status.

The firm must be able to sustain your salary over a long term. The firm may also be subjected to the laws that apply when a certain percentage of your employees are on non-immigrant/immigrant visas rather than permanent residents or citizens.

Here is the link to my previous post (http://www.qesehmk.org/forums/showthread.php/992-AC21-Discussion?p=29476#post29476).

It is an old post and you need to research more. The post is from the days when they did not ask for explanations for changing your employer(other than the petitioning one) before approving 485s.

[GC-Utopic]

Viz,

Thanks for the reply. Contract W2 is the same as being an employee but with the understanding that the employment will terminate as soon as the specific engagement ends. Also, I am fully aware of the tax/insurance/worker's comp/payroll and other liabilities (and other headaches) of having a company as I already own a small one that is besides my FTE job (which I perform from a different location than my own business). Currently my job is what is responsible for my legal status, if you will.

In the future state, if I take up this other offer I would either be an employee (contract w2) or I can be a 'corp to corp' to them which not only gets a lot more money but also comes with very significant tax benefits.

So, coming back to my question, barring the taxation and other requirements for a company to legally function, is there any reason why I cannot work for a company owned by my wife (who is on GC EAD as my dependent) assuming that my job description remains similar to my labor certification. In theory my wife can own a business and employ anyone for it and in theory I can work for any legal employer as long as the nature of my job remains similar so IN THEORY there shouldn't be an issue....

I am only looking for an answer from the immigration perspective and it would be very helpful if anyone can shed light from this perspective or share any experiences. Please do assume that I will not go alone by what anyone says here and will seek professional advice before taking such a step however I do need to get some information while I am going through the process of pursuing the opportunity. Any help is appreciated.

Thanks

My $0.0002,

This is a perennial question for lot of folks and I have consulted lot(3) of lawyers and deducing the law is the easy part( work for any company in similar field after 6 months of pending I485); hardest part which you only can answer is, once you submit the EVL from your wife's company, can you handle the sleepless nights IF you are called for an interview and how viable your corporate records going to be whenever you have to show and all other unknown variables. If you have confidence in your year after year revenue projection and the mindset to handle it, go for it. Financially, you will be better off for sure.

I have known a friend who attended an interview with an EVL from his wife's company, but he had sound revenues and the interview was a breeze and he is a citizen now.

All the best and take an informed decision weighing all the pros and cons. Expect the unexpected and proceed.

[almost]

Kanmani,
Thanks.
The ability to pay would not be an issue for the new entity; in fact the converse would be true. Meaning that in my current job that I have I am well past the prevailing wage on which my Labor was filed. If I do the new one as an FTE then the difference with the prevailing wage determined at the time of labor would be so big that it would be hard to justify having the same job description (which is an anomaly simply due to the market's supply and demand situation and nothing has changed other then normal career progression....I still do a similar job as I did earlier). It is to mitigate this risk, along with the tax benefits, that I am thinking of going this route of having an LLC in my wifes name and that LLC paying my salary. Whatever remains after the salary and expenses can be claimed as profit earnings for my wife. The other benefit would be that she can get into the social security system as well by running a little paycheck for herself out of the balance. My only worry is that I don't want to risk my immigration status and just wanted to check if there is someone on the forum who has been through this and can shed some light.

[almost]

Almost,

I wanted to refrain from commenting here as it will open you up for legal interpretations from the immigration point of view.. however, I wrote a long post about AC21 some time ago and that may help you here to get started ..

PLEASE BE ADVISED THAT YOU "WILL" NEED LEGAL REPRESENTATION FROM A COMPETENT LAWYER BEFORE YOU MAKE ANY DECISION !! ... The interpretations here are my own and are based on limited research .. I do not claim to know all the laws that govern these things..

Having said that I think it will be better if YOU incorporate a company as you are the primary for the GC process ... having a dependent start a corp and hire the primary may not be supported by the law ..

As per my interpretation of the Ayte's memo and other documents related to AC21 ... you can start your own firm and be employed by it at the same time ... so long as the firm is legit, financially viable/sustainable and your Job there is same/similar to your initial perm/140, you should be able to adjust your status.

The firm must be able to sustain your salary over a long term. The firm may also be subjected to the laws that apply when a certain percentage of your employees are on non-immigrant/immigrant visas rather than permanent residents or citizens.

Here is the link to my previous post (http://www.qesehmk.org/forums/showthread.php/992-AC21-Discussion?p=29476#post29476).

It is an old post and you need to research more. The post is from the days when they did not ask for explanations for changing your employer(other than the petitioning one) before approving 485s.

pdfeb09,
Thanks for responding. I will defnitely be getting advice and representation from a lawyer once I get to the bridge so to speak. Just wanted to get some thoughts on the viability of such an action. Mucho Gracias :)

[almost]

My $0.0002,

This is a perennial question for lot of folks and I have consulted lot(3) of lawyers and deducing the law is the easy part( work for any company in similar field after 6 months of pending I485); hardest part which you only can answer is, once you submit the EVL from your wife's company, can you handle the sleepless nights IF you are called for an interview and how viable your corporate records going to be whenever you have to show and all other unknown variables. If you have confidence in your year after year revenue projection and the mindset to handle it, go for it. Financially, you will be better off for sure.

I have known a friend who attended an interview with an EVL from his wife's company, but he had sound revenues and the interview was a breeze and he is a citizen now.

All the best and take an informed decision weighing all the pros and cons. Expect the unexpected and proceed.

GC-Utopic,
Thanks. I was a career consultant too and just recently went FTE and I think god, just to have a smile, sent this opportunity over which is just too good to pass but has this precondition about C2C etc. I am not too worried about the record keeping part as I already do a damn good job (per my CPA) in my existing firm. Revenue projections are also not an issue as the industry I am in is expected to remain hot for 3 yrs atleast and I do have a track record of constant paychecks for the past 8 years or so without any break/gap. Your friend's case is certainly inspiring. I will be speaking to a lawyer once we get to the point where we have to make the choice. Thanks once more.

[Kanmani]

Kanmani,
Thanks.
The ability to pay would not be an issue for the new entity; in fact the converse would be true. Meaning that in my current job that I have I am well past the prevailing wage on which my Labor was filed. If I do the new one as an FTE then the difference with the prevailing wage determined at the time of labor would be so big that it would be hard to justify having the same job description (which is an anomaly simply due to the market's supply and demand situation and nothing has changed other then normal career progression....I still do a similar job as I did earlier). It is to mitigate this risk, along with the tax benefits, that I am thinking of going this route of having an LLC in my wifes name and that LLC paying my salary. Whatever remains after the salary and expenses can be claimed as profit earnings for my wife. The other benefit would be that she can get into the social security system as well by running a little paycheck for herself out of the balance. My only worry is that I don't want to risk my immigration status and just wanted to check if there is someone on the forum who has been through this and can shed some light.

almost,

As far as I know, the ability to pay question arises only if the business is a new venture.

You cannot wait for the contractor to pay you to pay your employee( in a C1-C2-employee structure ). What if the Corp1 is behind the payments, Corp2 must have the ability to pay on its own (!) That has to be proved in a real time perm certification by presenting the tax, bank statements along with the assets owned by the company.

See, AC21 is as similar as sponsoring a GC to the employee, the thing is that the employee having already past certain steps in the process, the new company is allowed to take over it which is protected by the law. By providing an EVL to the USCIS, the company is of course sponsoring the GC with a permanent job offer .

[edisonguy]

"By providing an EVL to the USCIS, the company is of course sponsoring the GC with a permanent job offer ." - This is not correct statement, if applicant has already joined a firm under AC21. This is very very grey area. USCIS in their request for evl does not ask the employer to write that the offer is valid even after the GC is issued.


almost,

As far as I know, the ability to pay question arises only if the business is a new venture.

You cannot wait for the contractor to pay you to pay your employee( in a C1-C2-employee structure ). What if the Corp1 is behind the payments, Corp2 must have the ability to pay on its own (!) That has to be proved in a real time perm certification by presenting the tax, bank statements along with the assets owned by the company.

See, AC21 is as similar as sponsoring a GC to the employee, the thing is that the employee having already past certain steps in the process, the new company is allowed to take over it which is protected by the law. By providing an EVL to the USCIS, the company is of course sponsoring the GC with a permanent job offer .

[edisonguy]

Under AC21 there is no question of ability to pay. Infact this was even verified by Murthy. The applicant should not be a public discharge, thats the main criteria under AC21.

[Spectator]

"By providing an EVL to the USCIS, the company is of course sponsoring the GC with a permanent job offer ." - This is not correct statement, if applicant has already joined a firm under AC21. This is very very grey area. USCIS in their request for evl does not ask the employer to write that the offer is valid even after the GC is issued.I disagree with your statement.

All EB cases are necessarily for future employment after LPR status is granted. Therefore, whether the person is already working there is largely irrelevant.

To qualify to become an LPR and for the case to be approved, a bone-fide offer of employment in a full time, permanent position must exist for the person once granted LPR status. The employer has to state that those conditions will apply if the case is approved.

That is what the RFE for an EVL seeks to establish and that is what the employer must state.

It is only a grey area for those that seek to abuse the intent.

One can argue about the definition of "permanent" post the approval, since no employment in the USA can be considered "permanent".

[pdfeb09]

Under AC21 there is no question of ability to pay. Infact this was even verified by Murthy. The applicant should not be a public discharge, thats the main criteria under AC21.

I agree with Kanmani and Spec.

By submitting the EVL the (non-petitioning) employer actually says that he/she agrees with the petition filed earlier and is willing to employ the beneficiary in the same/similar position with the same or similar pay.

The job offer must exist for an EB GC to be issued. Moreover, since the employer has to prove that the beneficiary will not end up being a public charge, the onus is on the employer to prove that he/she can pay the beneficiary the prevailing wages************ for the position over a long term.

The ability to pay is absolutely a must. It may or may not be verified by the officer at his/her own discretion. e.g. there is no need to verify the ability to pay when the employer is Microsoft, Amazon, Facebook etc ..
however, SomethingSmall Inc. with HQ in Six Miles SC** , will most likely be asked to prove it along with the legitimacy of the business itself !

** - (don't want to pick on any particular city or state .. it is just an example .. could well be Cascade in TX or even Sacramento in CA ... )

************ - I back-tracked about the prevailing wages part in the later post (http://www.qesehmk.org/forums/showthread.php/992-AC21-Discussion?p=49036#post49036)s when Spec produced a relevant section of AC21 Dec 2005 Memo.. !! :) I still think the employer needs to be able to pay ... just not prove that they are paying the "prevailing wage".

[edisonguy]

There are may people who got approved under AC21 with self employment. I know personally somebody. Now please explain how your rule on permanent/fulltime fits in self employment.

After 180 days, it all matters only with Same or Similar occupation.

[Kanmani]

edisonguy,

I'll give you an example. I am starting an Indian Restaurant with whatever I have in hand, I need atleast a cook and a server. I am an employer now. I have two employees. I must have the ability to pay them whether or not I have sales/profit, for that I must have some reserve in the bank. Do you agree with it?

Let me try to sponsor GC to a cook who is working in my restaurant, I don't know the prevailing wage, lets assume 40k per year. The law and the DL expects me to have that 40k in reserve as bank cash or assets or in any form of valuable which is worth 40k . I should have the ability to pay wages.

What if one of the cook from my opponent willing to join me on EAD, who has I-485 pending, asking me to provide an EVL? Don't I need the ability to pay my cook no.2?

USCIS is scrutinizing or not, what does the law expect from me? The Original poster 'almost' wanted discussions on law point of view, not from an escapee point of view.

Are you not 'almost'???????

[pdfeb09]

There are may people who got approved under AC21 with self employment. I know personally somebody. Now please explain how your rule on permanent/fulltime fits in self employment.

After 180 days, it all matters only with Same or Similar occupation.

Self employment is still an employment (usually full time, at that). When an RFE is issued asking for an EVL(Employment Verification Letter), you would have to have an EVL from your employer. The employer could be you yourself.

Regardless of AC21, EB (Employment Based) Visa will NOT be issued without a valid job offer from a legitimate and financially stable/viable/sustainable employer !!

Whether the IO (Immigration Officer) verifies the job offer (one more time ) or not is a matter of discretion. There is hardly anyone getting a GC in FY 2014 before replying to an EVL RFE (along with Medicals).

[edisonguy]

Let me make it simple to understand. Without getting paid, nobody can stay in a job and its illegal. (May be that can happen in country like In***, where no enforcement of law. LoL)

Ability to pay is a criteria to check at I-140 stage. In 485, under AC21 after 180 days has passed, there is no requirement in the checklist to verify the ability to pay.

The requirement is only check whether the applicant is in same or similar occupation, getting paid without becoming a public discharge.





edisonguy,

I'll give you an example. I am starting an Indian Restaurant with whatever I have in hand, I need atleast a cook and a server. I am an employer now. I have two employees. I must have the ability to pay them whether or not I have sales/profit, for that I must have some reserve in the bank. Do you agree with it?

Let me try to sponsor GC to a cook who is working in my restaurant, I don't know the prevailing wage, lets assume 40k per year. The law and the DL expects me to have that 40k in reserve as bank cash or assets or in any form of valuable which is worth 40k . I should have the ability to pay wages.

What if one of the cook from my opponent willing to join me on EAD, who has I-485 pending, asking me to provide an EVL? Don't I need the ability to pay my cook no.2?

USCIS is scrutinizing or not, what does the law expect from me? The Original poster 'almost' wanted discussions on law point of view, not from an escapee point of view.

Are you not 'almost'???????

[Spectator]

Ability to pay is not a consideration when the applicant has used the AC21 I-140 portability provisions. I always thought that was a bit strange.

These extracts from the 2005 AC-21 Memo (http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm122705.pdf) probably cover the main points:


Question 5. Should service centers or district officers use a difference in the wage offered on the approved labor certification and initial I-140, and the new employment as basis for denial in adjustment portability cases?

Answer: No. As noted above the relevant inquiry is if the new position is the same or similar occupational classification to the alien’s I-140 employment. A difference in the wage offered on the approved labor certification, initial I-140 and the new employment cannot be used as a basis of a denial. However, a substantial discrepancy between the previous and the new wage may be taken into consideration as a factor in determining if the new employment is “same or similar.”


Question 7. Should service centers or district offices request proof of “ability to pay” from successor employers in I-140 portability cases, in other words, from the new company/employer to which someone has ported?

Answer: No. The relevant inquiry is whether the new position is in the same or similar occupational classification as the alien’s I-140 employment. It may be appropriate to confirm the legitimacy of a new employer and the job offer through an RFE to the adjustment applicant for relevant information about these issues. In an adjustment setting, public charge is also a relevant inquiry.


Question 8. Can an alien port to self-employment under INA §204(j)?

Answer: Yes, as long as the requirements are met.

First, the key is whether the employment is in a "same or similar" occupational classification as the job for which the original I-140 petition was filed.

Second, it may be appropriate to confirm that the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues.

Third, as with any portability case, USCIS will focus on whether the I-140 petition represented the truly intended employment at the time of the filing of both the I-140 and the I-485. This means that, as of the time of the filing of the I-140 and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.


Question 14. Must the alien have a new offer of employment at the time the I-485 is being adjudicated under the I-140 portability provisions?

Answer: Yes. The alien cannot still be looking for “same or similar” employment at the time the I-485 is being adjudicated under the adjustment portability provisions. The alien must be able to show there is a new valid offer of employment at the time the I-485 is adjudicated.

[Kanmani]

Thanks Spec. That clears the air. The condition on ability to pay comes with a caveat.

[pdfeb09]

Ability to pay is not a consideration when the applicant has used the AC21 I-140 portability provisions. I always thought that was a bit strange.

Question 7. Should service centers or district offices request proof of “ability to pay” from successor employers in I-140 portability cases, in other words, from the new company/employer to which someone has ported?

Answer: No. The relevant inquiry is whether the new position is in the same or similar occupational classification as the alien’s I-140 employment. It may be appropriate to confirm the legitimacy of a new employer and the job offer through an RFE to the adjustment applicant for relevant information about these issues. In an adjustment setting, public charge is also a relevant inquiry.
These extracts from the 2005 AC-21 Memo (http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm122705.pdf) probably cover the main points:

Spec,

Thanks for pulling out the relevant sections of the Ayte's Memo 2005. I did read that in explicit terms about no requirement of "Ability to Pay", however, what evidence would an employer be required to submit to prove that the employee will not end up being a public charge?

"Ability to pay" in the memo, in my opinion refers to the ability to pay the "prevailing wage" for the position. The new employer need not prove that, especially the prevailing wage part (read no requirement to poll the DOL for the relevant wage information).

This is clarified by the previous part in the memo where it says "Wage difference" need not be considered in isolation for making the adjustment decision.

When I/Kanmani argue about the "Ability to Pay", we are talking about the ability of the employer to pay the wages (close to prevailing wages) over a longer term. Needs to prove that the employer is financially stable and capable. That I believe is a must !!

Interpretation of "Ability to pay" is what is causing all the ruckus ...

Edit: I edited my previous post (http://www.qesehmk.org/forums/showthread.php/992-AC21-Discussion?p=49020#post49020) where I was screaming about the "prevailing wage" ... just thought I would own up to it here as well ! :o

[Kanmani]

Let me make it simple to understand. Without getting paid, nobody can stay in a job and its illegal. (May be that can happen in country like In***, where no enforcement of law. LoL)

Ability to pay is a criteria to check at I-140 stage. In 485, under AC21 after 180 days has passed, there is no requirement in the checklist to verify the ability to pay.

The requirement is only check whether the applicant is in same or similar occupation, getting paid without becoming a public discharge.

Arguments sake apart, Do you think it is legitimate to start a LLC genuinely for the purpose of avoiding to pay the share of wages in a corp-corp structure and extending its wings to immigration purpose ?

On a different note, somebody was asking sportsfan if he would reject an offer on EB1C under all criteria tailored with a straightforward GC, If I am given an opportunity, I'll reject it.

[edisonguy]

please educate yourself on 1099 (self employment) and see how the taxes are imposed. Self employment is not an option to evade tax. Its a individual's choice.
This is a greatest nation in the earth & no one can easily evade tax here. It just eliminates paying hard earned money to the middle agent.

Let us stick to the point. Yes it is legitimate to start self employment under AC21.

Another thing, self employment and immigration are two different topic. Nobody is trying to customize it for immigration. It is allowed. Its is legal. Its is acceptable by USCIS and what is ethically wrong here ?

On a different note, this topic is all about AC21 and we don't need a self explanation on your honesty level.



Arguments sake apart, Do you think it is legitimate to start a LLC genuinely for the purpose of avoiding to pay the share of wages in a corp-corp structure and extending its wings to immigration purpose ?

On a different note, somebody was asking sportsfan if he would reject an offer on EB1C under all criteria tailored with a straightforward GC, If I am given an opportunity, I'll reject it.

[pdfeb09]

please educate yourself on 1099 (self employment) and see how the taxes are imposed. Self employment is not an option to evade tax. Its a individual's choice.
This is a greatest nation in the earth & no one can easily evade tax here. It just eliminates paying hard earned money to the middle agent.

Let us stick to the point. Yes it is legitimate to start self employment under AC21.

Another thing, self employment and immigration are two different topic. Nobody is trying to customize it for immigration. It is allowed. Its is legal. Its is acceptable by USCIS and what is ethically wrong here ?

On a different note, this topic is all about AC21 and we don't need a self explanation on your honesty level.

edisonguy .. you can disagree with anybody here .. but you don't have to be impolite .. !

I grant you that you brought up a good point and I am glad we cleared it out with a reference to a document.

[edisonguy]

To me thats the best way. There is no impolite word anywhere. One should start writing in a straight forward way instead of copy pasting some junk

and give new interpretation to grey areas.


edisonguy .. you can disagree with anybody here .. but you don't have to be impolite .. !

I grant you that you brought up a good point and I am glad we cleared it out with a reference to a document.

[Spectator]

To me thats the best way. There is no impolite word anywhere. One should start writing in a straight forward way instead of copy pasting some junk

and give new interpretation to grey areas.edisonguy,

There is a difference between being direct and civil versus being impolite.

I believe you have crossed the line into the latter.

Please take some time to understand the difference.

[Kanmani]

Edisonguy,

Thanks for the recommendation on 1099. Yes, I'll sure do it, I have no knowledge on self-employment and was wondering how could the same law support a rocket scientist or neuro specialist to create a company and employ himself. I agree that I am inexperienced.

Could you please point me out where those copy paste junks are?

PS: Sorry Spec, I thought that 'junk' comment was shot at me.

[almost]

To me thats the best way. There is no impolite word anywhere. One should start writing in a straight forward way instead of copy pasting some junk

and give new interpretation to grey areas.

Guys,

Thanks for all the responses and clarifications.

Kanmani,

It is correct that I was looking for information from immigration related legality of the option. Also, I think edisonguy has a valid point that the idea of having your corporation is not to evade taxes but it does have a lot of benefits with things that can be expensed as a genuine cost of doing business instead of paying for those from post tax income which can be very expensive if you are in a high tax bracket. I am all for paying taxes as they are neccessary but I also would like to get the same advantages as a big corporation gets. And whether we like it or not this country favors corporations when it comes to doing anything and rightly so as the small and medium enterprises are the real strength of this country.

pdfeb09
As far as the legitimacy of business, in a court of law it would be very difficult to argue against a firm, even if it is run from a basement and however small in size and headcount, as long as there is revenue coming in and if the business makes a decent profit after expenses however small the profit may be. However, in the eyes of the adjudicating officer it may matter a lot and that is what scares most including yours truly. Similarly, as far as the ability to pay is concerned, it is not difficult to comeup with justification for revenue projections if you can back it up with historical data and industry outlook that is available (for a steep price though) from reputed, and specialized, firms for almost all industry sectors. But there also the adjusdicating officer could make a discretionary choice which could as easily be influenced by the recent behavior of the mrs (or mr) as the tracffic condition of his/her commute.

edisonguy,
I have been following this forum for a while and besides the knowledge of people here, the greatest thing about this forum is that a lot of objectivity is maintained. Request that we maintain that and express our views without getting personal. Also, everyone doesn't have the same appetite for risk and there is nothing wrong with having limits on that...after all if everyone would start taking insane amount of risk then it would be a complete chaos out there and what would differentiate us from them :cool:

Regards

[qesehmk]

Agree w Spec and pdfed here. There are many people who are very intelligent on this forum. And I do think Edison brought good valuable points. It is always more useful when we keep an open mind and try to cut edges to our argument.

Going back to the topic - let comment on legality vs ethics. Sometimes law allows it but ethics doesn't. I think the society should be ecstatic if all follow laws and very few follow ethics. Because the other way round is a slippery slope. To give an example - Buffett - who I admire a lot - pointed out that he pays less taxes than his secretary. Which he thought is wrong with America. Yet he does choose to use all the tax vehicles that allow him to save tax.

Same with self-employment and what not. If the law allows you to avoid tax ... I wouldn't blame a person who takes advantage of that.

As per the issue of self-employment ... that was the real issue here. I must say "same or similar" is the key condition. But same or similar also needs to be a credible job offer. Self employment can be quite incredulous. So while USCIS didn't object to X people ahead of me doesn't mean USCIS will NOT object to X+1 i.e. me!

I do believe USCIS can and will issue RFEs to the employer ie. yourself if they wish too. I'd be curious what others think.

[almost]

Ability to pay is not a consideration when the applicant has used the AC21 I-140 portability provisions. I always thought that was a bit strange.

These extracts from the 2005 AC-21 Memo (http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm122705.pdf) probably cover the main points:

Spec,
Thanks for the reference. Now I have another question regarding {However, a substantial discrepancy between the previous and the new wage may be taken into consideration as a factor in determining if the new employment is “same or similar.”} What is considered as a "substantial discrepancy"? I am personally in a situation where my current salary in the new job is in multiples of what my labor was filed at and as I have mentioned previously this is purely circumstantial due to the supply and demand situation of the market and my job discription remains the same as the labor ceritification and the AC21 that was filed was almost identical.
Views from others are appreciated as well.
Thanks

[Kanmani]

Q, Spec and pdfeb,

I do have doubts on this self employment and AC21. I still think it couldn't be applicable to all job codes listed by DoL. Do you have anyinputs ?

Q,

My comments were based on an idea by the OP to start up a consultancy to issue a AC21 EVL to USCIS, the original job offer is at A, and the consultancy is B and the original poster is the C. B is C's own company on his spouse's name.

The discussion didn't start the way it is now as self employment on AC21 at all.

[Spectator]

Spec,
Thanks for the reference. Now I have another question regarding {However, a substantial discrepancy between the previous and the new wage may be taken into consideration as a factor in determining if the new employment is “same or similar.”} What is considered as a "substantial discrepancy"? I am personally in a situation where my current salary in the new job is in multiples of what my labor was filed at and as I have mentioned previously this is purely circumstantial due to the supply and demand situation of the market and my job description remains the same as the labor certification and the AC21 that was filed was almost identical.
Views from others are appreciated as well.
Thanksalmost,

One of the problems is that USCIS has always remained rather vague on the subject. While that can be advantageous to give the widest possible latitude in making a determination, it leave everybody asking the question you have raised.

In the Memo I referenced earlier, USCIS had this to say:


Question 3. What is “same or similar” occupational classification for purposes of I-140 portability?

Answer: When making a determination if the new employment is the “same or similar” occupational classification in comparison to the employment in the initial I-140, adjudicators should consider the following factors:

A. Description of the job duties contained in the ETA 750A or the initial I-140 and the job duties of the new employment to determine if they are the “same or similar” occupational classification.

B. The DOT code and/or SOC code assigned to the initial I-140 employment for petitions that have a certified ETA 750A or consider what DOT and/or SOC code is appropriate for the position for an initial I-140 that did not require a certified ETA 750A. Then consider the DOT code and/or SOC code, whichever is appropriate for the new position to make a determination of “same or similar” occupational classification.

C. A substantial discrepancy between the previous and the new wage. (See Question 5 of this section for further clarification).

I think generally people are more worried where the new wage would be substantially lower than the old one. USCIS are not totally unaware of long wait times and the fact that people do get promoted.

Because of post size limits, the reply is continued in the next post.

[Spectator]

In a page that was last changed in 2011, USCIS published some Questions about Same or Similar Occupational Classifications Under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) (http://www.uscis.gov/news/questions-and-answers/questions-about-same-or-similar-occupational-classifications-under-american-competitiveness-twenty-first-century-act-2000-ac21) . Some address your question (Q2, Q4 & Q5 might be the most applicable), but not necessarily in the definitive way you ask.


Questions about Same or Similar Occupational Classifications Under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21)

Introduction

Section 106(c) of AC21, commonly known as the job flexibility provision, was enacted as Immigration and Nationality Act (INA) section 204(j). This portion of the INA is provided below for convenience:

A petition under subsection (a)(1)(D) [redesignated as (a)(1)(F)] for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.

This section of law allows certain aliens to change or port the offer of employment on which their adjustment of status application is based from one job to another job as long as both jobs are in the same or similar occupational classification. Within these questions and answers, the term “port” or “porting” means to change the offer of employment from one job to another job in a way that allows an applicant to remain eligible to adjust status without having to file a new I-140 immigrant petition. For an alien to change the offer of employment, his or her adjustment of status application, Form I-485, must have been pending with USCIS for 180 days or more.

Questions and Answers

Q1. What is an “occupational classification”?

A1. The Department of Labor (DOL) uses the Standard Occupational Classification (SOC) system to group and classify jobs and occupations. The purpose of the SOC system is to classify workers into occupational categories to organize occupational data. The SOC system covers all occupations where work is performed for pay or for profit. Occupations are categorized based on the type of work performed. Additionally, certain occupations are also classified based on the skills, education and training required to perform the job.

The SOC system is organized using codes, which generally consist of six numerical digits. For example, the SOC code for a stonemason is 47-2022.

[47]-2022: The first two digits, “47” represent the major group, which includes all construction and extraction occupations.
47-[2]022: The third digit, “2” represents the minor group, which includes all construction trade workers.
47-2[02]2: The forth and fifth digits, “02” represent the broad occupation, which includes brickmasons, blockmasons, and stonemasons.
47-202[2]: The sixth digit, “2” represents the detailed occupation, which only includes stonemasons.

47-0000 Construction and Extraction Occupations
47-2000 Construction Trades Workers
47-2020 Brickmasons, Blockmasons, and Stonemasons
47-2022 Stonemasons

No occupation will be assigned to more than one category at the lowest level of the classification (sixth digit). A USCIS memo titled, Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) (December 27, 2005 AC21 Memo) instructed USCIS officers to consider the Dictionary of Occupational Titles (DOT) code as part of the same or similar occupational classification analysis. The DOT has been replaced by the Occupational Information Network (O*NET) under the sponsorship of DOL’s Employment and Training Administration (ETA). The O*NET system relies upon the SOC codes.

Q2. How does USCIS determine what qualifies as a same or similar occupational classification?

A2. USCIS generally makes a determination as to whether one job is in the “same or similar” occupational classification as another by referring to the DOL’s SOC system. USCIS officers also consider multiple factors to conclude if two jobs are considered to be in similar occupational classifications for porting purposes (see above question for definition of “porting”). USCIS officers may compare factors including, but not limited to:

The job duties of both positions
The SOC code from the Immigrant Petition for Alien Worker (Form I-140) and the appropriate SOC code for the new position
The wages associated with each position

USCIS officers will view the totality of the circumstances to determine if the two jobs are the same or similar for porting purposes.

Q3. Does USCIS only use the first two or the first three numbers of the SOC code to determine if two occupational classifications are same or similar?

A3. As noted above, USCIS does not use a simple numerical comparison of SOC codes to determine if two jobs are the same or similar. USCIS aims to determine in all cases whether a new position is in the same or similar occupational classification as the original job offer.

When referring to the SOC system, USCIS will analyze the SOC codes of the two jobs it is comparing. However, there is no hard and fast rule for matching any particular order of digits in two SOC codes.

In the example in Q.1, the “47” encompasses all construction and extraction occupations, which is a broad category and would not determine whether two jobs are similar. In this particular example, even matching additional digits of the SOC codes may not show whether or not two jobs are similar.

For example, the SOC code for a stonemason is 47-2022. The job description for a stonemason is:

Build stone structures, such as piers, walls, and abutments. Lay walks, curbstones, or special types of masonry for vats, tanks, and floors.

The SOC code for a boilermaker is 47-2010, which contains the same first four numbers of the stonemason’s SOC code (47-20). However, the job description for a boilermaker is significantly different from that of stonemason:

Construct, assemble, maintain, and repair stationary steam boilers and boiler house auxiliaries. Align structures or plate sections to assemble boiler frame tanks or vats, following blueprints. Work involves use of hand and power tools, plumb bobs, levels, wedges, dogs, or turnbuckles. Assist in testing assembled vessels. Direct cleaning of boilers and boiler furnaces. Inspect and repair boiler fittings, such as safety valves, regulators, automatic-control mechanisms, water columns, and auxiliary machines.

Q4. The December 27, 2005 AC21 Memo states that a discrepancy between the wages of two jobs may be used to decide if the two positions are the same or similar, but the memo also states that a difference in the wages of the two jobs cannot be used as the sole basis for denial in adjustment of status portability cases. Can USCIS provide further explanation on how wages are used to determine whether two jobs are in the same or similar occupational classification?

A4. Section I, Question 3 from the December 27, 2005 AC21 Memo provides USCIS officers with the flexibility to consider a “substantial discrepancy” in the wages offered in two positions to assist them in deciding if the two jobs are in the same or a similar occupational classification. A “substantial discrepancy” in the wages of the two jobs may be a contributing factor in a denial when the evidence is considered in its totality. However, a USCIS officer should not deny a case solely because a second position pays more or less than the original.

Section 1, Question 5 from the December 27, 2005 AC21 Memo references a “difference” in the wages to inform both USCIS officers and the public that a difference in wages should not be used as the sole basis for a denial. This means there can be an allowance for normal raises that occur through the passage of time to account for inflation and other factors such as higher rates of pay in different metropolitan locations.

Q5. Can I accept a different position or receive a promotion from my employer and remain eligible to adjust my status to permanent residence?

A5. USCIS will evaluate these situations on a case-by-case basis. The job duties for each position, the SOC codes for each position, and any differences in the wages will be the determining factors as to whether you remain eligible. Regardless of whether the new job is considered a demotion, a lateral move or a promotion within the company for which the beneficiary is employed, the job duties must be sufficiently similar. USCIS officers will view the totality of the circumstances in light of the congressional intent, expressed in INA section 204(j), as enacted by 106(c) of AC21, to facilitate job mobility within the same or similar occupational classification for qualifying aliens with long-pending adjustment applications.

Since you say:


I am personally in a situation where my current salary in the new job is in multiples of what my labor was filed at and as I have mentioned previously this is purely circumstantial due to the supply and demand situation of the market and my job description remains the same as the labor certification and the AC21 that was filed was almost identical.

that would appear to be less of a concern given the language above about "sufficiently similar". Only the adjudicator could answer your question.

[pdfeb09]

Q, Spec and pdfeb,

I do have doubts on this self employment and AC21. I still think it could be applicable to all job codes listed by DoL. Do you have anyinputs ?



Kanmani,

I think AC21 is applicable to all the eligible(I485+180 days) EB cases . The applicability does not depend upon the job code, nor does it depend upon the EB category (except for EB5 may be - I don't know what it would mean in case of an EB5 application). AC21 also clearly supports self-employment !

[qesehmk]

Kanmani

I also have doubts about self employment and AC21. There is a self-sponsored H1 that USCIS came out last year I think. So I am sure about self-sponsored H1.

I am not aware of any specific guidance on self-employment for AC21.


Q, Spec and pdfeb,

I do have doubts on this self employment and AC21. I still think it couldn't be applicable to all job codes listed by DoL. Do you have anyinputs ?

Q,

My comments were based on an idea by the OP to start up a consultancy to issue a AC21 EVL to USCIS, the original job offer is at A, and the consultancy is B and the original poster is the C. B is C's own company on his spouse's name.

The discussion didn't start the way it is now as self employment on AC21 at all.


AC21 also clearly supports self-employment !

pdfeb - I probably missed that. What's the reference? Or is it just your opinion?

[Spectator]

Kanmani

I also have doubts about self employment and AC21. There is a self-sponsored H1 that USCIS came out last year I think. So I am sure about self-sponsored H1.

I am not aware of any specific guidance on self-employment for AC21.

pdfeb - I probably missed that. What's the reference? Or is it just your opinion?Q,

See this post, where the Memo is quoted, or the Memo (http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm122705.pdf) itself.

I understand your concerns, but it is what USCIS appears to allow. I'm not convinced AC21 was entirely well thought out and the full ramifications considered.

[qesehmk]

Spec

Thanks. I applaud USCIS for clarifying self employment in the manner they have done. And I hope many people read your POST.

I agree with you in terms of its efficacy (or lack thereof) to maintain the integrity of system. However you can't expect backlogged GC applicant to maintain integrity over inordinate period of time. So I think AC21 unwittingly does the right thing!

Having said this - I think USCIS still leaves a lot of discretion at its hands when it says


Second, it may be appropriate to confirm that the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues.

Finally I really don't like what they say here ... because filing of 140 itself is the intent on behalf of the employer. Whereas filing of 485 should be considered intent by the immigrant. Luckily it is not going to be easy for USCIS to find absense of intent.

Third, as with any portability case, USCIS will focus on whether the I-140 petition represented the truly intended employment at the time of the filing of both the I-140 and the I-485. This means that, as of the time of the filing of the I-140 and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment.


Finally ..... a great great great discussion this has been. I mean I learnt something new today. Thanks to YOU and others!


Q,

See this post, where the Memo is quoted, or the Memo (http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm122705.pdf) itself.

I understand your concerns, but it is what USCIS appears to allow. I'm not convinced AC21 was entirely well thought out and the full ramifications considered.

[Spectator]

Finally ..... a great great great discussion this has been. I mean I learnt something new today. Thanks to YOU and others!Q,

I agree it has been a good discussion. It's refreshing to see a different subject.


Finally I really don't like what they say here ... because filing of 140 itself is the intent on behalf of the employer. Whereas filing of 485 should be considered intent by the immigrant. Luckily it is not going to be easy for USCIS to find absense of intent.


Third, as with any portability case, USCIS will focus on whether the I-140 petition represented the truly intended employment at the time of the filing of both the I-140 and the I-485. This means that, as of the time of the filing of the I-140 and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment.

I didn't quite understand your point.

In the case of a non-concurrent I-485 filing some time after the I-140, the intent to hire the person when they become an LPR still has to exist. Without that continuing intent from the employer, there is no basis for the beneficiary to file the I-485 application.

There can be several years between the employer filing I-140 and and the beneficiary filing the I-485, so it seems reasonable to test the intent of the parties at both points of time.

[qesehmk]

In the case of a non-concurrent I-485 filing some time after the I-140, the intent to hire the person when they become an LPR still has to exist. Without that continuing intent from the employer, there is no basis for the beneficiary to file the I-485 application.

There can be several years between the employer filing I-140 and and the beneficiary filing the I-485, so it seems reasonable to test the intent of the parties at both points of time.
Exactly because there can be several years between the two - I think it is unfair for backlogged countries to carry that burden for a longer duration than non-backlogged countries.

As you can imagine - lots of things change over time. So it is unfair to expect the intent to remain the same over 3-5-10 years.

[Spectator]

Exactly because there can be several years between the two - I think it is unfair for backlogged countries to carry that burden for a longer duration than non-backlogged countries.

As you can imagine - lots of things change over time. So it is unfair to expect the intent to remain the same over 3-5-10 years.Q,

Life is not always fair. It's one of the regrettable consequences of retrogression.

You seem to be saying that in a case where the job offer no longer exists and the employer has no intention of employing the beneficiary of the I-140 petition when the I-485 is approved, that the person should still be entitled to file an I-485 based on that I-140 approval?

That would be an absolute nonsense IMHO. Why bother to test the job requirement at all, if ultimately it doesn't have to exist. It would be granting I-140 portability before an I-485 was ever submitted (and on an I-140 that ultimately becomes rather questionable).

Lots of things do change over time, but one thing that can't is the intent of both sides to honor the bargain surrounding the implied job offer. If that changes, then the beneficiary no longer has a basis to file an I-485 based on that I-140 approval.

That is why it has to be restated after a passage of time (initially when the I-485 is submitted and possibly via an EVL prior to approval). The need to state it when the I-485 is submitted is common to all applicants - an EVL is required initial evidence.

[qesehmk]

Spec - I am not surprised at all that we have a difference of opinion on how it should be! But ours are just opinions anyway.

I am glad USCIS issues that memo on AC21 for self-employment situation. Great relief for EB23/IC and EB3ROW.

Q,

Life is not always fair. It's one of the regrettable consequences of retrogression.

You seem to be saying that in a case where the job offer no longer exists and the employer has no intention of employing the beneficiary of the I-140 petition when the I-485 is approved, that the person should still be entitled to file an I-485 based on that I-140 approval?

That would be an absolute nonsense IMHO. Why bother to test the job requirement at all, if ultimately it doesn't have to exist. It would be granting I-140 portability before an I-485 was ever submitted (and on an I-140 that ultimately becomes rather questionable).

Lots of things do change over time, but one thing that can't is the intent of both sides to honor the bargain surrounding the implied job offer. If that changes, then the beneficiary no longer has a basis to file an I-485 based on that I-140 approval.

That is why it has to be restated after a passage of time (initially when the I-485 is submitted and possibly via an EVL prior to approval). The need to state it when the I-485 is submitted is common to all applicants - an EVL is required initial evidence.

[GC-Utopic]

Spec - I am not surprised at all that we have a difference of opinion on how it should be! But ours are just opinions anyway.

I am glad USCIS issues that memo on AC21 for self-employment situation. Great relief for EB23/IC and EB3ROW.


I am not an expert, but think USCIS intentionally put the AC21 portability for AOS vague, to bring it on par with Consular processing who will get GC within the same timeframe of 6 months from applying for adjustment. agree with Spec that its not well thought out for the extended retrogression.

like somebody mentioned, the most they care about is the public charge scenario and should be ok with earning more than the PWD.

[Kanmani]

Thanks Sports. At least you have the same or similar view as that of mine. Guys call that Consulting business as self-employment, which in my opinion is not. I brought that into the picture without knowing nothing about self-employment at least i am still unbaked dough.

Self employment as per IRS fall into three important categories behavioral, financial, type of relationship with the employer. In general if you perform services that can be controlled by an employer like what will be done and how it will be done, then you are obviously an employee not an individual contractor.

In other words, the basis for self-employment is that the said job is should not control you by setting definitions and rules. When there are set of rules you are obliged to do the work as required by the employer and hence you are an employee.

Can all the job codes listed in the Department of Labor be self employed? No Certainly not. If the Yates memo speaks about self-employment, it directly refers to those which could be performed as individual contract. It is not to be taken granted for tailoring same/similar job as a employee into something else. If you guys look into your perm description of duties, you will know for yourself.

PS: I still hold the honesty claim is relevant to this AC21- self-employment discussion, as no one would ever submit a EVL by admitting the actual same/similar job is at the third party site rather pretend it to be available at the new company at their basement.

[almost]

All the memos and legal interpretation won't save you from the hassle of self employment when the USCIS asks for an EVL. That's my clear cut understanding.

People are known to do a lot of dicey things. Many people do not work for their sponsor until the GC is issued. Many people do A to B to D to C to B to D again. I am sure some souls would do self employment thing on pending 485. But all these things are risky. You may still get approved with a very good lawyer, but then, you should know what you are doing and be convinced that the benefits outweigh the costs.

In my eyes, when you submit a new EVL, you have the intent to work for the new employer, so the GC will now be based on that offer. The "same or similar" stipulation applies because your original labor was done for a specific skill and the prevailing wages that come with it. That is the logical way to think about it. Self employment on the other hand can mean anything. There are millions of s-corps in this country and the labor bureau has no way of knowing what every individual s-corp does. Why should you be given a GC when the underlying labor has been compromised? A really tough adjudicator might deny it.

I grant it that I have not heard anyone getting denied because of AC21. I don't know if anyone gets denied because of ability to pay issues at 485. Since retrogression is relatively recent, we haven't come across such cases yet. Also, the USCIS might be approving such cases today, but one internal memo can change everything tomorrow. So just because you know some XYZ who did it doesn't mean it is a standard practice. The risk for the most people is simply not worth it.

Also, edisonguy needs to a) write properly constructed English statements and b) contribute to this forum more before chiming in with snide remarks against this forum's best posters. Just saying.

Sportsfan, Kanmani,
I do see where you guys are coming from on your view against the self employment/consulting but the other side of the coin is that since there is a delay in the GC process people should not be bound to an employer or even employers in general as long as they can justify legal means to support the prescribed salary range for a job class. If you haven't been in the body shop environment then it is very difficult to udnerstand the pain and loss of income we have to go through. There have been instances in my case and with others where people were making multiples of what was handed out to us, as the prevailing wage, in commissions. I personally do not mind people making a decent comission on arranging a project/job for me but the majority of the money is supposed to go to the person doing the job. This is exactly the reason why most banks now force vendors to disclose the payments to the consultant performing the services.
Also, given the state of the economy and the general instability associated with Jobs here I would want to make the most of what is out there while the tide is in my favor without jeopardizing the immigration process. The self employment route makes that possible as I can work on a reasonable salary and still pocket the profit and once the tide sibsides then I can go back to a normal job within the same salary range that I made as self employed and not raise brows. And contrary to some beliefs, it is not improbable to have a steady source of income year around even if you are not engaged on a project as those risks are built into the rates. In other words, in the bench period there is a paycheck coming from earnings earlier and this is no different than the model followed by the large / midsze consulting firms everywhere; so why should a smaller entity be not given the same benefits.
Offcourse people will misuse this but there are laws against that like anything else.
Thanks

[Kanmani]

Sportsfan, Kanmani,
I do see where you guys are coming from on your view against the self employment/consulting but the other side of the coin is that since there is a delay in the GC process people should not be bound to an employer or even employers in general as long as they can justify legal means to support the prescribed salary range for a job class. If you haven't been in the body shop environment then it is very difficult to udnerstand the pain and loss of income we have to go through. There have been instances in my case and with others where people were making multiples of what was handed out to us, as the prevailing wage, in commissions. I personally do not mind people making a decent comission on arranging a project/job for me but the majority of the money is supposed to go to the person doing the job. This is exactly the reason why most banks now force vendors to disclose the payments to the consultant performing the services.
Also, given the state of the economy and the general instability associated with Jobs here I would want to make the most of what is out there while the tide is in my favor without jeopardizing the immigration process. The self employment route makes that possible as I can work on a reasonable salary and still pocket the profit and once the tide sibsides then I can go back to a normal job within the same salary range that I made as self employed and not raise brows. And contrary to some beliefs, it is not improbable to have a steady source of income year around even if you are not engaged on a project as those risks are built into the rates. In other words, in the bench period there is a paycheck coming from earnings earlier and this is no different than the model followed by the large / midsze consulting firms everywhere; so why should a smaller entity be not given the same benefits.
Offcourse people will misuse this but there are laws against that like anything else.
Thanks

almost,

I must apologise for the heated arguments on the subject matter as it was not intended to sail in that direction, moreover this forum has maintained its level best to avoid them.

Coming back to your situation, I agree your point of view on how these consultancies swaha all your hardearned money. I am not against consultancies/FTE/corp-corp/abc model employments. My arguments were precisely into fitting those kind of job offer into the immigration system.

There are ofcourse certain denials related to proving ability to pay on the AC21 job offer, one of them here.......http://www.uscis.gov/sites/default/files/err/B4%20-%20Multinational%20Managers%20and%20Executives/Decisions_Issued_in_2007/May182007_02B4203.pdf


The petitioner originally claimed to be engaged in import, export, and international trading. It seeks to employ the beneficiary as its vice-president of sales and marketing. Accordingly, it endeavored to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(l)(C), as a multinational executive or manager. According to
counsel, the original petitioner no longer intends to employ the beneficiary, since the petitioner ceased operations and the beneficiary's division was merged into a new company.' Counsel asserts that the beneficiary is now be employed by a third, unrelated company.

The petition was filed on May 21, 1998 and the director approved the petition on May 1 1, 1999. The beneficiary filed an 1-485, Application to Register Permanent Residence or Adjust Status in August 1999. The director requested further evidence to support approval of the 1-485 in February 2001 and in September 2002. Upon review of the totality of the record, the director issued a Notice of Intent to Revoke on February 27, 2003. The petitioner provided a rebuttal on April 21, 2003. After review, the director determined that the petitioner had not established its ability to pay the beneficiary the proffered wage and that the beneficiary's current position was not in a managerial or executive capacity.

In analyzing a petitioner's ability to pay the proffered wage, the fundamental focus is whether the employer is making a "realistic" or credible job offer and has the financial ability to satisfy the proffered wage. Matter of Great Wall, 16 I&N Dec. 142, 145 (Acting Reg. Comm. 1977).

In the Notice of Intent to Revoke, the director observed that the record did not substantiate that the petitioner had ever employed the beneficiary. The director concluded that the beneficiary had been unemployed prior to attempting to utilize the benefits provided under the "portability provision" of section 2040') of the Act, 8 U.S.C. § 11540), as added by section 106(c) of the American Competitiveness in the Twenty First Century Act of 2000 (~~21).Th e director concluded that the beneficiary was not eligible for the classification sought and issued the Notice of Intent to Revoke on March 25,2003.

To be continued......

[Kanmani]

Apart from ability to pay, the USCIS would take into consideration on whether the job offer is bonafide.

Here is one example of one such denial case.... http://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Ad vanced%20Degrees%20or%20Aliens%20of%20Exceptional% 20Ability/Decisions_Issued_in_2012/May022012_02B5203.pdf

Under 20 C.F.R. §§ 626.20(c)(8) and 656.3, the petitioner has the burden of establishing that a bonafide job opportunity exists when asked to show that the job opportunity is available to U.S. workers. See Matter of Amger Corp., 87-INA-545 (BALCA 1987); see also 8 U.S.c. § 1361. On the Form ETA 750 (Item 22.h.) the employer specifically certifies that the job offer "is clearly open to any
qualified U.S. worker." A relationship invalidating a bona fide job offer may arise where the beneficiary is related to the petitioner by "blood" or it may be "financial, by marriage, or through friendship." See Matter of Sun mart 374, 00-INA-93 (BALCA May 15, 2000).

To be continued......

[Kanmani]

almost,

When you consider setting up an consultancy on your own as a family business and there is an job offer for you, I think you would agree that it cannot be considered as self-employment. I would say it is corp- corp job offer. As per Yates memo ability to pay is not an initial evidence on AC21, but the same memo calls it as secondary evidence, when and if needed the officer can go for it. Clearly, the ability of pay RFE is not out of the picture and if USCIS sends one, it is the burden of the petitioner to prove it. On further digging into proving the ability, the proffered wage must match the 'Net' income of the employer ruling out the gross income.

I agree with Sportsfan that we are emphasizing the risk factors involved in entering into this consultancy job offer but are not against your plan or trying to intimidate you. You have traveled hard in this journey so far, very close to GC in hand stage, but still waiting. Analyze and do the best for you.

All the best!

[almost]

almost,

When you consider setting up an consultancy on your own as a family business and there is an job offer for you, I think you would agree that it cannot be considered as self-employment. I would say it is corp- corp job offer. As per Yates memo ability to pay is not an initial evidence on AC21, but the same memo calls it as secondary evidence, when and if needed the officer can go for it. Clearly, the ability of pay RFE is not out of the picture and if USCIS sends one, it is the burden of the petitioner to prove it. On further digging into proving the ability, the proffered wage must match the 'Net' income of the employer ruling out the gross income.

I agree with Sportsfan that we are emphasizing the risk factors involved in entering into this consultancy job offer but are not against your plan or trying to intimidate you. You have traveled hard in this journey so far, very close to GC in hand stage, but still waiting. Analyze and do the best for you.

All the best!

Kanmani, Sportsfan,
Thanks for your valuable inputs. My last post was merely a statement of the perspective from the other side, if you will, and certainly not meant to be argumentative. I have received a lot of insight from you both and others a well who contributed and at this point am waiting for clarity at my end before making the decision. If it all does work out then will definitely be seeking the opinion of a reputable attorney and maybe go for the paperwork through them if it looks like a feasible option.
Thanks once more to all for their inputs.
Thanks

[Pundit Arjun]

Dear Spec, Q, MATT2012, Kanmani and other experts,

I am planning to switch jobs. My 485 has been pending approval for more than 180 days. I am now currently working on EAD and my H1-B extension application has been submitted.

I have couple of offers that are enticing : One as a Product leader.
My I-140 has the SOC code of 15-1111 (Computer and Information Research Scientists). My new Job as a product leader i believe would fall under :Computer and Information Systems Managers” (11-3021).

a) The new company would not extend my H1 (I have been doing the extensions to use as a backup if any issues arise with my 485)
b) Do you believe the SOC codes for the old and new job titles would qualify me for AC21 ?
c) Can I hire Murthy to answer question (b) and also contract with them to represent my case if any issue arises later ? My new employer uses another big law firm and I have to use them for EAD/AP processing.

Also, do let me know if you believe the job change is too much a risk.
Please advise.
Thanks in advance folks.

Best Regards,
Arjun

[imdeng]

I am sure Kanmani/Spec will have more specific advice - but from my vantage point, your role seems like natural progression. See a helpful para in this link: http://www.cilawgroup.com/news/2012/10/01/rules-governing-i-485-portability-to-a-new-employer-under-ac21/


In a somewhat recent teleconference, the Nebraska Service Center (NSC) provided some unofficial but helpful guidance on their reasoning and practice when adjudicating AC21-related cases. NSC was asked to provide some guidance as to their criteria in adjudicating the “same or similar” job standard. In response, NSC confirmed that the “same or similar” has not been a significant issue because NSC has been applying a “common sense” approach – NSC has confirmed that most petitions invoking AC21 portability based on similar occupations are indeed usually similar, i.e. accountant doing another accounting position, IT consultant working in the IT field. On the other hand, IT worker making “slurpees at the 7-Eleven” would not be considered to qualify under AC21.


Dear Spec, Q, MATT2012, Kanmani and other experts,

I am planning to switch jobs. My 485 has been pending approval for more than 180 days. I am now currently working on EAD and my H1-B extension application has been submitted.

I have couple of offers that are enticing : One as a Product leader.
My I-140 has the SOC code of 15-1111 (Computer and Information Research Scientists). My new Job as a product leader i believe would fall under :Computer and Information Systems Managers” (11-3021).

a) The new company would not extend my H1 (I have been doing the extensions to use as a backup if any issues arise with my 485)
b) Do you believe the SOC codes for the old and new job titles would qualify me for AC21 ?
c) Can I hire Murthy to answer question (b) and also contract with them to represent my case if any issue arises later ? My new employer uses another big law firm and I have to use them for EAD/AP processing.

Also, do let me know if you believe the job change is too much a risk.
Please advise.
Thanks in advance folks.

Best Regards,
Arjun

[qesehmk]

Pundit

I am not expert on SOC codes. But generally speaking in the same line of work becoming a manager is not a big deal. That should be ok.

Having said that if you do decide to ask for AC21 advice from a lawyer - WhereismyGC.com does offer that as a service. It wouldn't hurt to spend few hundred bucks if you are looking at a promotion.

All the best on whatever you choose to do and perhaps others can shed light on SOC codes.


Dear Spec, Q, MATT2012, Kanmani and other experts,

I am planning to switch jobs. My 485 has been pending approval for more than 180 days. I am now currently working on EAD and my H1-B extension application has been submitted.

I have couple of offers that are enticing : One as a Product leader.
My I-140 has the SOC code of 15-1111 (Computer and Information Research Scientists). My new Job as a product leader i believe would fall under :Computer and Information Systems Managers” (11-3021).

a) The new company would not extend my H1 (I have been doing the extensions to use as a backup if any issues arise with my 485)
b) Do you believe the SOC codes for the old and new job titles would qualify me for AC21 ?
c) Can I hire Murthy to answer question (b) and also contract with them to represent my case if any issue arises later ? My new employer uses another big law firm and I have to use them for EAD/AP processing.

Also, do let me know if you believe the job change is too much a risk.
Please advise.
Thanks in advance folks.

Best Regards,
Arjun

[Pundit Arjun]

I am sure Kanmani/Spec will have more specific advice - but from my vantage point, your role seems like natural progression. See a helpful para in this link: http://www.cilawgroup.com/news/2012/10/01/rules-governing-i-485-portability-to-a-new-employer-under-ac21/

Thanks imdeng. The page is informative.
With the dates retrogressing, time to move on, i guess :). I will also seek the advice from lawyer (like Q mentioned) at WhereismyGC.com and take advantage of the job situation.
Hope Kanmani, You and Me get our GCs soon.

[nbk1976]

There is a USCIS memo (not regulation) that clearly states that self-employment is possible. Neither the AC21 law nor any USCIS regulation forbids self-employment. Anything not forbidden is not illegal. So it not visa fraud; no it does not even border on fraud. There is plenty of other kinds of fraud, this is not one at all.

When I-485 is filed, the USCIS should approve or deny the case in a reasonable time frame. If the application is approved, but a visa number is unavailable, they usually pre-adjudicate the application. After a period of 180 days passes, the applicant is considered to be a FREE AGENT. He does not have to employed with the same employer. Only his job duties should be the same. There is absolutely nothing wrong in the applicant working independently and doing work for a client.

Self-employment is no risky as long as the applicant can clearly show that s/he has been doing the same or similar job as an independent contractor. There is no need to set up any company or have any separation from h/im/erslf as employee and h/im/erself as employer.

Example: Computer programmer writing apps for a company, can easily write apps and sell for the new smartphone apps on his/her own. The only other requirement is that s/he should be able to support h/im/erself. There is NO NEED to have the wages at the level of what is described in the Labor application.

Go here for the AC21 Memo (page 4, question 8): http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm122705.pdf

And go here to read some notes from a well-know lawyer on this matter: http://www.immigration-information.com/forums/threads/self-employment.6206/

[nbk1976]

Ability to pay is used when the officer feels the employment letter or job is shady. But if it turns out that the job offer is legitimate and the job is similar in nature, and the wages offered are above the poverty line, they have to approve the GC.

Example: Microsoft can pay $100,000 a year for a programmer, but a smaller company offering a job with similar job duties might offer only $60,000, but there may be so many other reasons to invoke AC21 and work for this company: co-ownership, flexible work hours, etc.

The wage difference is just one way for the adjudicator to see if the job is same or similar. The reasoning is that similar jobs pay similar salaries. This has always been flawed and was more often not true. Wages in NYC are different from Lakeland, FL. The company may be smaller; it may be just a startup; maybe you are getting co-ownership in the company but smaller salary, etc., etc., etc. There are so many possibilities.

[nbk1976]

Ability to pay (levels mentioned in labor certification) has to be established only by the original petitioner. When AC21 is invoked, subsequent employers nor the applicant has this burden (as long as job offer is legitimate). Only the job type must be the same AND the applicant should not become a public charge (i.e., must be able to earn a living wage).

[nbk1976]

When the RFE for an EVL comes along and you are self-employed or independent contractor, you submit a letter stating what you are and have been doing, and send client-letter with your name and job duties, 1099 or any other way you were getting paid, tax returns, and the fact that you have been doing this for at least 6 months - 1 year will show that the job is indefinite and your ability to find such a job is strong. Any client references about the good job you are doing and that hey want to preserve this relationship for an indefinite period would be very helpful.

But, yes, there may be a few more things to send when under self-employment, but as long as everything is LEGIT, there is no more risk here.

The least risky thing is to work for GC sponsor from day 1 to GC. But that may not be realistic for many people. The intention of AC21 was to give relief and to ensure people are not stuck with jobs and employers they have grown weary with.

[nbk1976]

Because AC 21 is not clear on self-employment, USCIS has been using the Aytes memo internally for such cases. Of course this is not USCIS regulation, only an ad hoc procedure, pending a formal policy or a new memo. But the self-employment cases are so rare that USCIS has not bothered to do anything in over 10 years. If they decide to negatively view self-employment, say because of large-scale fraud, then you cannot hold them to that memo. They will retroactively enforce any new memo or regulation.

[edisonguy]

posting after 2 months...i got my GC in October. I changed my job exactly after 182 days of filing 485. My salary was 125% higher than labor. Did not file AC21. Got RFE before becoming current. For EVL gave letter exactly as in case PERM duties (which was same and legit - fortunately) stating the actual HIGHER salary. Received my GC after responding to RFE. Key here is your job roles and responsbilities. Not salary. Wish you all good luck.. I changed employer twice..First employer checked with Rajiv khanna and told me to take a pay cut stating AC21 higher salary, which I did not accept and moved on immeidately to another employer with higher pay than first one !!! Again good luck to all.

[harapatta]

Need little clarification on AC21 :

I am currently on EAD + H1B waiting for my dates to be current ( EB2, filling date April 2010). I already moved once two years ago within the same company same field just leadership role and filled AC21 for the change in location and job. Looking to move up within the same company one more time, similar job just senior leadership position, biggest challenge is I have to move physically within the US.

Guru’s do you see any problem if I have to file AC21 one more time? , thanks in advance for your kind input.

[qesehmk]

Need little clarification on AC21 :

I am currently on EAD + H1B waiting for my dates to be current ( EB2, filling date April 2010). I already moved once two years ago within the same company same field just leadership role and filled AC21 for the change in location and job. Looking to move up within the same company one more time, similar job just senior leadership position, biggest challenge is I have to move physically within the US.

Guru’s do you see any problem if I have to file AC21 one more time? , thanks in advance for your kind input.
harapatta - congratulations on your career moves. Filing of AC21 is not mandatory at all. So why file? Even if you move within US you are covered by AC21. Of course since it's the same company and if they are paying for AC21 filing - you might do it and you might not. I don't think it makes any difference one way or other.

[harapatta]

thank you so much for your quick response..:)

[krishn]

Guru's ,

My PD is 2xMarch2004 EB3I.

Is it advisable to change the job now or stick with the existing employer/employment till it shuts down in aug and then change later.

we have some merger and acquisition situation at my client company. So the IT dept will be relocated to bay-area/phoenix from south. we learnt that the deal closing will be in last week of may. They would retain us for next 60 days after deal closing which is till July. I have been working for this client company for several years through once subsidiary company of the client company on EAD from 2009.

What will I have to do if I get a RFE between jobs in Sept?

is it better to just look for a new job now and join a new job in same city before RFE hits me or wait till end of august to change the job from 485 approval perspective?


Thank you so much

[krishn]

Guru's ,

My PD is 2xMarch2004 EB3I.

Is it advisable to change the job now or stick with the existing employer/employment till it shuts down in aug and then change later.

we have some merger and acquisition situation at my client company. So the IT dept will be relocated to bay-area/phoenix from south. we learnt that the deal closing will be in last week of may. They would retain us for next 60 days after deal closing which is till July. I have been working for this client company for several years through once subsidiary company of the client company on EAD from 2009.

What will I have to do if I get a RFE between jobs in Sept?

is it better to just look for a new job now and join a new job in same city before RFE hits me or wait till end of august to change the job from 485 approval perspective?


Thank you so much

Gurus,

Any suggestions on my job change timing (in quotes above) predicament ?

Thanks a lot in advance

[qesehmk]

krishn - if I were you I would worry about my job than green card. Your GC is almost there. Even if there is an RFE - do not worry about it at all. Make the decision that is good for your career. Do not base the decision on "How can I avoid an RFE". I hope it helps. Good luck!


Gurus,

Any suggestions on my job change timing (in quotes above) predicament ?

Thanks a lot in advance

[gcq]

edisonguy,
Thanks for posting your experience.

[krishn]

krishn - if I were you I would worry about my job than green card. Your GC is almost there. Even if there is an RFE - do not worry about it at all. Make the decision that is good for your career. Do not base the decision on "How can I avoid an RFE". I hope it helps. Good luck!

Thank you Q. I will concentrate on the career and decide accordingly and not worry about the RFE timing.

thank you Q again.

[qesehmk]

Thank you Q. I will concentrate on the career and decide accordingly and not worry about the RFE timing.

thank you Q again.

All the best Krishn. I am sure you have a long successful career. So any RFE can be dealt without any problems. Besides - my "opinion" is that - US government / DOS - they are smart enough to know how to retain good people like yourself. It is not a joke to stay with one employer for 10 years. So I am sure things will work out for you.

[krishn]

All the best Krishn. I am sure you have a long successful career. So any RFE can be dealt without any problems. Besides - my "opinion" is that - US government / DOS - they are smart enough to know how to retain good people like yourself. It is not a joke to stay with one employer for 10 years. So I am sure things will work out for you.

Q, I think you are in a overtly generous mood :-) :), IO will go with the case details and follow the rule book, IO may not retain good people. He may not be generous like you are today :-P :p

thank you Q for your kind inspiring words.

[khushraho]

Hi Gurus,

I need a small advise/help..

My priority date is Dec 2009, under EB2..I may become current sometime next year..I've been working for the same sponsoring employer for the last 7 years..I am planning to change my employer by invoking AC21..

My 140 is applied as 'Cognos Architect' and the roles and responsibilities were not at all generic..Lots of tools were specified...The soc code was '15-1031' which comes under 'Computer Software Engineers, Applications'

Now my new job title would be "Business Intelligence Manager' and they don't have any cognos..During the interview I mentioned about AC21 and i told that I would need to get an employment letter and in the roles and responsibilities I would copy paste from 140..He told that should be okay during interview..

My question is,
Will my new title will be an issue with AC21?
AC21 is really a risky thing to do?
if we can't progress in career , what is the whole point of AC21?

As plan B, my friend is running a small consulting company..if any future RFE comes, can an offer letter from him would do any good? There I can have the exact title and exact roles and responsibilities..Or should I need to work for him during that time?

Thanks,

[qesehmk]

Khushraho - I am not an expert on AC21. But my understanding is that AC21 is quite broad. How broad ? I do not know.

But I wouldn't be surprised if the only time it doesn't apply is when a SW engineer starts working in home depot as a store clerk.

However lets wait to hear from Spec / Kanmani or whoever else that has better interpretation of AC21.



Hi Gurus,

I need a small advise/help..

My priority date is Dec 2009, under EB2..I may become current sometime next year..I've been working for the same sponsoring employer for the last 7 years..I am planning to change my employer by invoking AC21..

My 140 is applied as 'Cognos Architect' and the roles and responsibilities were not at all generic..Lots of tools were specified...The soc code was '15-1031' which comes under 'Computer Software Engineers, Applications'

Now my new job title would be "Business Intelligence Manager' and they don't have any cognos..During the interview I mentioned about AC21 and i told that I would need to get an employment letter and in the roles and responsibilities I would copy paste from 140..He told that should be okay during interview..

My question is,
Will my new title will be an issue with AC21?
AC21 is really a risky thing to do?
if we can't progress in career , what is the whole point of AC21?

As plan B, my friend is running a small consulting company..if any future RFE comes, can an offer letter from him would do any good? There I can have the exact title and exact roles and responsibilities..Or should I need to work for him during that time?

Thanks,

[gcq]

From what I see AC21 requirements need not be skill to skill match. However jobs should be similar. Cogmas architect can become a Software engineer with any language. They are still similar. Business Intelligent Manager - How similar it is to a software engineer ? The skills used in that position comes into play. If Business Intelligence manager is using standard programming languages to do his job, it does not matter.

Check with a lawyer.

[Pundit Arjun]

Dear Friends,

I changed employers invoking AC-21 and I have received a status update on my 2/3 year old approved i-140. The status of i-140 is "Initial Review" and the online status tool says "we updated your name for your Form I-140...".

Is this normal ? Have you experienced the same ?
Thanks in advance for your time and thoughts.

Best,
Pundit

[lanaroady]

You mean, after she gets PD ported to EB2?

Also still confused about whether she can leave her employer after porting & before 180 days.

All of the things you are surrounded with the equal path is defined in some other way