AC 21 future employment

Company A filed my I-485 in Jan 2012 as future employment (never worked with them). I work with company B (double salary from Company A labor)since Oct 2011 on H1-B based on approved I-140 of company C (EB3 categ). Company B has filed my labor in Feb '14. Received RFE for EVL (I-485 application) assuming dates are being current, my PD is Oct 2008
1) Can Company B can file my AC21 though I have not worked with company A?
2) if something goes wrong with AC21 is my H1 valid?
3) What is the safest route recommended? i.e should I work with Company A or B
4) Either option I take what documents should be submitted

Any suggestions welcome.

Quote:

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Originally Posted by almostt

Company A filed my I-485 in Jan 2012 as future employment (never worked with them). I work with company B (double salary from Company A labor)since Oct 2011 on H1-B based on approved I-140 of company C (EB3 categ). Company B has filed my labor in Feb '14. Received RFE for EVL (I-485 application) assuming dates are being current, my PD is Oct 2008
1) Can Company B can file my AC21 though I have not worked with company A?
2) if something goes wrong with AC21 is my H1 valid?
3) What is the safest route recommended? i.e should I work with Company A or B
4) Either option I take what documents should be submitted

Any suggestions welcome.

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Please verify my understanding ...
1. You have 3 GCs in progress right now .. Company C filed EB3 and you had a 140, Company A filed 485 in Jan 2012, and Company B filed labor (and potentially 140) in feb 14.

In fact, if you just have the Company B GC going on and have ported date from either Eb3 OR Company A GC (if different) then you should not even need AC21.

If your latest company has filed GC paperwork, then you should simply port your PD from the previous applications and then submit all the paperwork (like EVL ) from the latest company.

AC21 is not applicable in that situation.


If you do not have I140 from the latest company yet, and wish to take advantage of the previous GC filings for the priority dates, then you have a few options:

1. Go and work for the sponsoring company (I assume this is really not an option since you have not already done it).
2. Ensure that your current employment position and job responsibilities are same/similar to the ones that were mentioned in your previous labor application. Use AC21 provision.
You would need an EVL from the latest employer, job responsibilities and start date on a letter head from the employer. You would also need to write a letter to USCIS explaining the reason for working with the current employer and not the petitioning one.

(Yes, Company B can file for AC21 even if you have never really worked with company A).

There could be more that you would have to do and a lawyer would be able to better explain.

PS: Your H1B remains valid regardless.

Thanks pdfeb09,
Company B has filed my labor which is in audit since Nov 2013. I work with company B based on an approved I-140 (EB3 category) with company C. Only company A has filed my I-485 in Jan 2012 (Eb2). Company A is independent of Company B.
Questions:
1)If I file AC21 with company B, does my H1-B become void with company B ?
2) if priority dates are current can one file for I-140 and 485 with no labor (some attorney told me but not confident of this)
3) If I reply to the RFE saying will work with company A upon GC approval and I do work which i intend to is that an issue ?

Quote:

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Originally Posted by almostt

Thanks pdfeb09,
Company B has filed my labor which is in audit since Nov 2013. I work with company B based on an approved I-140 (EB3 category) with company C. Only company A has filed my I-485 in Jan 2012 (Eb2). Company A is independent of Company B.
Questions:
1)If I file AC21 with company B, does my H1-B become void with company B ?
2) if priority dates are current can one file for I-140 and 485 with no labor (some attorney told me but not confident of this)
3) If I reply to the RFE saying will work with company A upon GC approval and I do work which i intend to is that an issue ?

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1) No. But company B can cancel it anytime they want and you would be out of H1B status. If you have your EAD, H1B cancellation does not affect you much. On EAD you can stay and work in USA legally without H1B.
2) Without Labor, you cannot file I140 and/or I 485 for that particular GC process.
3) If you do intend to work for company A, what is stopping you from going there right now? You must have had your EAD/AP for some time now.

You could use AC21 to work with company B, however, your job position and responsibilities at B must be same/similar to the ones mentioned in the labor of company A (I485 filing company). In that case you could get the EVL from company B and use AC21.

If the job responsibilities are not the same with Company B, then you would have to get an EVL from company A (You would have to convince them that you will be working for them after the GC and get them to say that the position still exists and you are still the candidate). You will also have to work out the H1B related stuff with your company B, because if they find out about your intended move, they can rightfully rescind/cancel your H1B. You should still be ok since you probably have your EAD/AP.

Another option (but you do not really have time for it) is to join a company D that has the same/similar position and job responsibilities as A. (I don't see why you would do that since A is still an option, but I just mentioned it for the sake of completeness.)

Hope this helps.

Thanks for your detailed answer, I am on EAD but choose not to work since benefits (pay is almost the same) are better for company B. I am not on EAD since if my application gets rejected I don't lose my status and have H1-B to fall back on. Only thing I am worried about AC21 is how will I prove intent for me joining company A while I-140 and 485 application.

almost,

I have answered some of your doubts in the previous thread started by you. Please avoid starting new threads with the same topic.

You were not this much elaborate in your earlier post.

Why can't you go with company A? Is it a consulting company with which you have started processing GC with an intention to join them once I-140 is approved?

Yes, once I-485 is approved

If you have the intention to join company A as soon as I-485 is approved, then go with company A's EVL and proceed with replying your RFE.

Its that simple. Why are you getting confused and discussing about AC21?