Friends,Quote:
Originally Posted by SmileBaba
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.
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Friends,Quote:
Originally Posted by SmileBaba
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.
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.
Quote:
Originally Posted by SmileBaba
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.
Quote:
Originally Posted by 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 ?
Quote:
Originally Posted by incredible
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.Quote:
Originally Posted by venkat
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
Good advice. I concur.Quote:
Originally Posted by Kanmani
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).
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/Memo...ntrm122705.pdf
Great information
Thanks for sharing
Quote:
Originally Posted by harapatta2012
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.Quote:
Originally Posted by almost
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,Quote:
Originally Posted by vizcard
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
Quote:
Originally Posted by almost
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?
Almost,Quote:
Originally Posted by 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.
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.
My $0.0002,Quote:
Originally Posted by almost
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.
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.
pdfeb09,Quote:
Originally Posted by 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 :)
GC-Utopic,Quote:
Originally Posted by 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.
almost,Quote:
Originally Posted by 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 .
"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.
Quote:
Originally Posted by Kanmani
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 disagree with your statement.Quote:
Originally Posted by edisonguy
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".
I agree with Kanmani and Spec.Quote:
Originally Posted by edisonguy
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 posts 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".
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.