AC21 Questions from Primus

[bandoayan]

Why you sent new employer's EVL ? RFE requires EVL from sponsoring employer, isn't it?

My sponsoring employer (big 5 consulting company) was not willing to give me EVL because I was separated from them. Now I had to submit EVL and the only place where I could get was from my current employer.

[GhostWriter]

Thanks Spec and Matt, very well explained.

Spec is it safe to add that even after 180 days what you stated is only necessary but not sufficient for getting I-485 approved. So if let us say I-485 has been pending for 2-3 years (or even 10 years) and a person loses or quits his job, he still needs a job offer in a similar role and can not be unemployed when his dates become current (This might be very obvious to a lot of people but still worth noticing). Though one could argue that if he belonged to a non backlogged country then he would have received his GC in the normal processing time of 6 months and if he lost his job after two years he would be fine (and probably eligible for unemployment benefits). AC21 though great still does not allow for that logic (basically EAD is not a provisional Green card).

So in effect you must be approvable with the original employer for the first 180 days and you must be approvable with "some" employer in a similar job after 180 days.

Page 14 (numbered 72) in Matt's link below states the following -
"What should a practitioner do if his or her client no longer intends to work for an I-140 petitioner, has an adjustment-of-status application that has been pending for 180 days, but has not followed the Cronin Memo procedure because of the lack of a suitable job offer, and now receives an I-485 approval notice? Most adjustment-of-status applications that are based on employment-based immigrant petitions do not require
personal interviews of the applicant, and notification of the I-485 approval is received in the form of an I-797 approval notice with no further action required from the applicant. If the I-485 application is approved and the client is unable to obtain such an offer of employment or establish a true and sustainable selfemployment situation, he or she should be advised that he or she, regardless of any approval notice or permanent resident card received from the USCIS, is not entitled to permanent resident status and must either depart the United States or immediately seek a
nonimmigrant status that will permit him or her to remain here. At the very least, the client should be counseled, if he or she does not wish to take these steps, that the issue may harm any future application for an immigration benefit, such as a naturalization application."

In my mind, an essential precondition for AC21 I-140 portability after 180 days is that the I-485 would have been approvable for the full 180 days had an adjudication taken place during that time. Otherwise, it makes a nonsense of having the 180 day requirement at all.

As we are discussing AC-21 provisions and 180 day requirements. This article may help. http://www.morganlewis.com/pubs/Unta...IB_15jan07.pdf

[Spectator]

Ghost,

What I said is only my personal interpretation - I don't think I have ever seen it written down anywhere. It may well be one of those grey areas.

If I understand your question correctly, yes, that's correct.

Whether its an AC21 I-140 portability case or not, an I-485 is only approvable if, at the time of adjudication, a qualifying job will be available to the applicant.

[GhostWriter]

Thanks Spec, this is exactly what I was looking to confirm. Do you know if USCIS allows some grace period for job search. So if the I-485 has been pending for more than 180 days and a person loses his job, how much time does he have to find a new one before he is considered out of status. (Let us assume his date does not become current).

Whether its an AC21 I-140 portability case or not, an I-485 is only approvable if, at the time of adjudication, a qualifying job will be available to the applicant.

[Spectator]

Actually, reading the analysis in the article MATT gave, it does discuss the Employer going out of business, but in a much wider time span than even I was talking about.

In addition, the Memos provide that an immigrant petition will have no validity in the context of §106(c) when it is “denied or revoked at any time,” with one exception: when the petition is revoked based on a withdrawal request submitted after the I-485 adjustment application has been pending for 180 days.

This provision, which arguably renders the first provision above redundant, allows USCIS adjudicators to deny a §106(c) portability request by denying the subject I-140 petition, as long as the denial is not based on a post-filing ground prohibited by the Memos, such as the petitioner’s ability to pay the proffered wage.

It is also worth noting the “denied or revoked at any time” provision’s significant breadth; the provision encompasses virtually all denials and revocations, including situations where an I-140
petition is revoked on the basis of the termination of the petitioner’s business per 8 C.F.R. §205.1(a)(iii)(D), regardless of when the revocation is made. Thus, it appears possible for an adjustment-of-
status applicant whose adjustment application has been pending for 180 days and who has taken up a position with a different employer that is in the same occupational classification as the position described in the I-140 petition to have his or her portability request denied because the I-140 petitioner has gone out of business.

This presents the practitioner representing an individual seeking §106(c) benefits or the employer wishing to employ this individual with an additional task: He or she must conduct some form of due diligence analysis of the state of health of the petitioner that filed the relevant I-140 petition to assess whether or not there is any likelihood that this petitioner may cease to do business, whether voluntarily or involuntarily. This appears to apply only to situations in which the immigrant petition has been approved; a cessation of the petitioner’s business does not present a ground on which to deny an unadjudicated I-140 petition, since this would be an “issue relating to a time after the filing of the petition,” as discussed in the earlier sections of the Memos dealing with adjustment portability in a concurrent I-140/I-485 context.

[Spectator]

Thanks Spec, this is exactly what I was looking to confirm. Do you know if USCIS allows some grace period for job search. So if the I-485 has been pending for more than 180 days and a person loses his job, how much time does he have to find a new one before he is considered out of status. (Let us assume his date does not become current).

Ghost,

I think the prevailing wisdom is you can, in theory be unemployed as long as you like, as long as when the case is adjudicated, you can show that you have a qualifying job available to you when the I-485 is approved.

In practice, that probably means you have the time to respond to an RFE for an EVL (a bit over 80 days) to get that proof and submit it. Without it, the I-485 would be denied.

As for the status issue, you would be in a "Period Of Stay Authorized by the Secretary of the DHS" as long as your I-485 is pending. Do note that this is not a "status", but rather a period of stay authorized by virtue of USCIS policy (and on a par with DACA) which means you do not accrue unlawful presence.

There is no basis in law for the authorized stay.

If you still have a valid I-94 or are in a period covered by Parole, then it is different again.

See this rather tortuous Memo for a full explanation.

[GhostWriter]

Thanks Spec.

Page 35 of the memo you provided clears the status issue as well.

Ghost,

I think the prevailing wisdom is you can, in theory be unemployed as long as you like, as long as when the case is adjudicated, you can show that you have a qualifying job available to you when the I-485 is approved.

In practice, that probably means you have the time to respond to an RFE for an EVL (a bit over 80 days) to get that proof and submit it. Without it, the I-485 would be denied.

[Eb2_Dec07]

Guys . Need your take . working as a consultant , my client needs me to travel outside US for business . My PD is Dec 07 - Eb2 Ind . I'm a derivative applicant ( primary already received GC in 2012 ) with pending 485 . 485 applied in Dec 2011 >>>>RFE received march 2012 >>>>RFE responded to in march >>>485 pending with RFE response since then >>>>>. My client needs me to travel in Aug and I asked them to wait for a few days on Aug before I can take up travel. Didnt apply for AP .

When do you think the case could get approved . Not sure if it is pre-adjudicated already .