EB2-3 Predictions (Rather Calculations) 2015-2020

[idliman]

I believe another employer can initiate H1b transfer at any point in time, regardless of the 180-day window from the employer who filed I485. AC21 doesn't require the individual to be employed with the employer who filed for 180 days, does it? Or is it that it's recommended to be with the employer for 180 days out of abundance of caution?

H1B/L1 and AOS Pending are two parallel and separate status'es. Only one of them is active. If you had not updated I-9 with EAD or not entered the country using AP, you are in H1B / L1 status. So you will follow the same steps assuming that you are in one status only. For H1B transfer follow whatever procedure that has been done before. If you want to complicate things, you can have multiple H1Bs at the same time.

The 180 days is concerning only the I485 and subsequent use of AC21 job portability. To avail that benefit you need to stay with the employer for 180 days from the notice day. After that period you can port without starting another PERM/I-140. You become a "free agent" after that 180 day period. That's why it is important to stay with your employer for 180 days.

Now if you do H1B transfer within the 180 days, then you violate your 180 day clock on the I485. So you may have to redo PERM and I-140 all over again.

[kuku82]

H1B/L1 and AOS Pending are two parallel and separate status'es. Only one of them is active. If you had not updated I-9 with EAD or not entered the country using AP, you are in H1B / L1 status. So you will follow the same steps assuming that you are in one status only. For H1B transfer follow whatever procedure that has been done before. If you want to complicate things, you can have multiple H1Bs at the same time.

The 180 days is concerning only the I485 and subsequent use of AC21 job portability. To avail that benefit you need to stay with the employer for 180 days from the notice day. After that period you can port without starting another PERM/I-140. You become a "free agent" after that 180 day period. That's why it is important to stay with your employer for 180 days.

Now if you do H1B transfer within the 180 days, then you violate your 180 day clock on the I485. So you may have to redo PERM and I-140 all over again.

Correct, I forgot to mention the part if currently on H1 with employer A who filed for I485 and no change in I-9, and now employer B wants to initiate H1 transfer. I believe should not impact the 180-day clock whatsoever.

Separately, I'm curious where this aspect about sticking with employer for 180-days post notice date is documented? Any links to share?

[Turbulent_Dragonfly]

Correct, I forgot to mention the part if currently on H1 with employer A who filed for I485 and no change in I-9, and now employer B wants to initiate H1 transfer. I believe should not impact the 180-day clock whatsoever.

Separately, I'm curious where this aspect about sticking with employer for 180-days post notice date is documented? Any links to share?

Explained pretty succinctly here on the landing page itself:
https://www.uscis.gov/working-in-the...ity-under-ac21

Also just to be technically correct, it's not 180 days from the Notice Date, it's from the Received Date.

[idliman]

Correct, I forgot to mention the part if currently on H1 with employer A who filed for I485 and no change in I-9, and now employer B wants to initiate H1 transfer. I believe should not impact the 180-day clock whatsoever.
Separately, I'm curious where this aspect about sticking with employer for 180-days post notice date is documented? Any links to share?

If you do a H1B transfer within the 180 days, you are taking a risk. The following does not say that you need to stay with the employer directly, but it is implied. Now if you transfer after 120 days and say you get a RFE on the 150th day, then you will have 2 to 3 months for the RFE deadline. By the time you reply the RFE your 180 day clock might have crossed. But you are starting to increase the risks of something going wrong.

Having waited for so many years to get a chance to file I485, why would you unnecessarily take a risk and go into a grey area? The whole point of filing for I485 based on DF dates is to avail AC21 benefits after 180 days. Anyway it is your choice.

USCIS Policy Manual has a Chapter on AC21. It says

To qualify for portability under INA 204(j), the adjustment applicant must meet the following eligibility requirements:

• The applicant is the beneficiary of an approved Form I-140 petition or of a pending petition that is ultimately approved;
• The petition is filed in the employment-based 1st, 2nd, or 3rd preference category;
• The applicant?s properly filed adjustment application has been pending with USCIS for 180 days or more at the time USCIS receives the request to port;
• The new job offer through which the applicant seeks to adjust status is in the same or similar occupational classification as the job specified in the petition; and
• The applicant submitted a request to port. If the applicant makes a request to port on or after January 17, 2017, the applicant must submit a Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) (Form I-485 Supplement J). If the applicant requested to port before January 17, 2017, the applicant could have requested to port through a letter, since Form I-485 Supplement J did not go into effect until January 17, 2017.

The new job offer may be with the same petitioner or with an entirely new employer, including self-employment. Applicants can submit the portability request and evidence with the adjustment application or in any in-person interviews or in response to a request or other notice from USCIS.

[kuku82]

Explained pretty succinctly here on the landing page itself:
https://www.uscis.gov/working-in-the...ity-under-ac21

Also just to be technically correct, it's not 180 days from the Notice Date, it's from the Received Date.

It simply says it needs to be pending for 180 days. Doesn't require the individual to also be employed by the filing entity in that duration. I've been reading up this as well: https://www.uscis.gov/policy-manual/...rt-e-chapter-5

It's entirely possible I'm missing something........

[moonlight]

If you do a H1B transfer within the 180 days, you are taking a risk. The following does not say that you need to stay with the employer directly, but it is implied. Now if you transfer after 120 days and say you get a RFE on the 150th day, then you will have 2 to 3 months for the RFE deadline. By the time you reply the RFE your 180 day clock might have crossed. But you are starting to increase the risks of something going wrong.

Having waited for so many years to get a chance to file I485, why would you unnecessarily take a risk and go into a grey area? The whole point of filing for I485 based on DF dates is to avail AC21 benefits after 180 days. Anyway it is your choice.

USCIS Policy Manual has a Chapter on AC21. It says

Thanks idliman for clarification on AC21. It is clear now that I-485 should be pending for 180 days from received date. But it is still grey area if any individual can initiate H1B transfer before 180 days and NOT join the new company until 180 days clock is over. Many people are in that situation and wondering if they can at least initiate H1B transfer. Do you see any risk?

[Turbulent_Dragonfly]

Thanks idliman for clarification on AC21. It is clear now that I-485 should be pending for 180 days from received date. But it is still grey area if any individual can initiate H1B transfer before 180 days and NOT join the new company until 180 days clock is over. Many people are in that situation and wondering if they can at least initiate H1B transfer. Do you see any risk?

I don't know man, it seems pretty clear to me from the below line. You lose portability if you don't wait 180 days. There are no grey areas or workarounds in my opinion. Best you check with your own attorney or get a consult if you don't have one to get the official word.

For you to change the offer of employment or employer, your Form I-485 must have been pending with USCIS for 180 days or more.

[kuku82]

If you do a H1B transfer within the 180 days, you are taking a risk. The following does not say that you need to stay with the employer directly, but it is implied. Now if you transfer after 120 days and say you get a RFE on the 150th day, then you will have 2 to 3 months for the RFE deadline. By the time you reply the RFE your 180 day clock might have crossed. But you are starting to increase the risks of something going wrong.

Having waited for so many years to get a chance to file I485, why would you unnecessarily take a risk and go into a grey area? The whole point of filing for I485 based on DF dates is to avail AC21 benefits after 180 days. Anyway it is your choice.

USCIS Policy Manual has a Chapter on AC21. It says

Totally agree not worth the risk. Just trying to understand the law here. Read about unfortunate cases such as job loss after 485 being filed and before 180 days are up. The pending 485, since it's for future employment, I believe gives legal status and opportunity to seek another employment once 180 days have passed.

[inspired_p]

For you to change the offer of employment or employer, your Form I-485 must have been pending with USCIS for 180 days or more.

To be even more clear, if one has to change employers before 180 days then the new employer has to apply for PERM and I-140 again for the employee.
The AC21 rules allows the existing pending I-485 to be I-1140 independent.

[rocketfast]

IMO, there is nothing called "H1B transfer". It is a new H1B application. I do not see any problem with applying for a new H1B application which asks for a start date after 180 days. For e.g, H1B approval letter has a "start date for approval". You are only supposed to work for 180 days with the old employer. It does not tell that you can't interview, initiate a new H1B application with a later starting date.

Edit: This information came from a immi lawyer of a good firm.

[ak7419]

Does anyone know truth to this statement - heard during RNLawgroup live youtube session that USCIS received ~415,000 downgrade applications.

[gcconnect]

Does anyone know truth to this statement - heard during RNLawgroup live youtube session that USCIS received ~415,000 downgrade applications.

This is similar
https://www.gtlaw-insidebusinessimmi...tice-delays-2/

[vsivarama]

Does anyone know truth to this statement - heard during RNLawgroup live youtube session that USCIS received ~415,000 downgrade applications.

That's not possible. See the link below. The total number of i140s till 2019 are EB2-336596 and EB3-80388. Even including the dependents it's quite a stretch to image 415K applications were received. What could be is that everything applied is counted as an application. So a family of 2 applying for AOS are technically applying 7 applications (2 - i485s, 2 - i765s, 2-i131s, 1-i140/i485SupJ). I can see ~415K based on the above metrics.

https://www.uscis.gov/sites/default/...ry_FY09_19.pdf

[moonlight]

IMO, there is nothing called "H1B transfer". It is a new H1B application. I do not see any problem with applying for a new H1B application which asks for a start date after 180 days. For e.g, H1B approval letter has a "start date for approval". You are only supposed to work for 180 days with the old employer. It does not tell that you can't interview, initiate a new H1B application with a later starting date.

Edit: This information came from a immi lawyer of a good firm.

Thanks rocketfast. It makes sense.

[InbaMayam]

Hello Gurus and everyone , appreciate all of your valuable posts.

I am eb3-I and my priority date is current since Jan2021 and my 485 is not approved yet, so far no status change after interview was completed in 2019. 485 was applied in Jan2019 , didn't use attorney's help. I am having EAD renewed until mid of 2022. My contract is ending with client in Feb 2020. My client and my current employer (485 sponsor) agreed to the full time employment conversion with client.
I have not changed jobs and currently working on h1 with my 485 sponsor last 15 years. I am planning to use EAD to join my client and joining date would be March 1st.

If my 485 is approved before March 1st, then is it ok to use the GC and join my client, without making an I-9 entry of GC with my 485 sponsor.
Any valuable suggestions please. Sincere Thanks.

[smac1982]

New ask for Supplement J may have nothing to do with your work from home option. Now a days whole world is doing remote work anyway. It is just a confirmation that USCIS requires in preparation of advancing the dates to make sure you still are employed bonafide as is mentioned by your job description. Go ahead and submit new supplement J and not worry about anything else.

Thanks for your response. The RFE did say that the latest correspondence to USCIS indicated that I moved away from the geographical area specified in my most recent SupJ. As you said, it's better that I submit a new SupJ even though there's no change from the last time. Hopefully this is the last time I have to do this before I get greened .

[inspired_p]

IMO, there is nothing called "H1B transfer". It is a new H1B application. I do not see any problem with applying for a new H1B application which asks for a start date after 180 days. For e.g, H1B approval letter has a "start date for approval". You are only supposed to work for 180 days with the old employer. It does not tell that you can't interview, initiate a new H1B application with a later starting date.

Edit: This information came from a immi lawyer of a good firm.

So does this make sense ??
" Bottom line is one can't leave the sponsor employer till 180 days after receipt or else I-485J of the new employer will not be allowed and I-485 will be denied. New employer will have to file PERM and I-140 for the employee in that case"

[rocketfast]

So does this make sense ??
" Bottom line is one can't leave the sponsor employer till 180 days after receipt or else I-485J of the new employer will not be allowed and I-485 will be denied. New employer will have to file PERM and I-140 for the employee in that case"

The USCIS language is not clear, but the general consensus is as you say above. I do know a friend that got laid off before 180 days. He joined the new employer, who filed his 485-j and it was NOT rejected and he got his GC. But I don't think that is the norm though.

[Ron1981]

Hello friends - I have a situation similar to that being discussed here and looking for guidance. My current employer filed for my I-140, EAD/AP & 485 in Oct 2020. I have received the receipts from USCIS for EAD/AP & 485. But no update on I-140. I have a new job offer that I'd like to take, and the employer is willing to wait for 180 days (end of April 2021) for me to begin. However, with no update on my I-140, I am not sure what to do. I learnt that you can receive your EAD/AP even without your I-140 being approved. Can I take the new job with after EAD/AP is approved, but my I-140 is not approved?

[krisswaves]

Hi guys, My PD is in Aug-2011 EB2, the current client where i am working is offering me FTE. I am not able to decide whether to take the offer or stick with the current employer and get EAD if the dates move in EB2/EB3(by downgrading) this FY, or at least in the start of FY22. I am hoping there will be some movement at the start of next FY. On the other hand, if I take the FTE offer with the client, I am thinking it's going to be at least 2 - 2 1/2 yrs until I'll be able to apply for I-140 because they don't start the PERM process for the first one year. Appreciate any suggestions/inputs. Thanks

[android09]

I don't know man, it seems pretty clear to me from the below line. You lose portability if you don't wait 180 days. There are no grey areas or workarounds in my opinion. Best you check with your own attorney or get a consult if you don't have one to get the official word.

For you to change the offer of employment or employer, your Form I-485 must have been pending with USCIS for 180 days or more.

Is it 180 calendar days or 180 business days ?

[knighthood83]

This is not true. AC21 states that adjustment application should be pending 180 days. It does not say you need to be employed. There is a difference. Lots of employers dont withdraw the petition. If you are out of a job on day 150 sure you are not portable but on day 181 you do become portable. The law states the adjustment application must be pending 180 days does not say anything about a job

[moonlight]

Is it 180 calendar days or 180 business days ?

It is calendar days.

[LeoAugust]

H1B/L1 and AOS Pending are two parallel and separate status'es. Only one of them is active. If you had not updated I-9 with EAD or not entered the country using AP, you are in H1B / L1 status. So you will follow the same steps assuming that you are in one status only. For H1B transfer follow whatever procedure that has been done before. If you want to complicate things, you can have multiple H1Bs at the same time.

The 180 days is concerning only the I485 and subsequent use of AC21 job portability. To avail that benefit you need to stay with the employer for 180 days from the notice day. After that period you can port without starting another PERM/I-140. You become a "free agent" after that 180 day period. That's why it is important to stay with your employer for 180 days.

Now if you do H1B transfer within the 180 days, then you violate your 180 day clock on the I485. So you may have to redo PERM and I-140 all over again.

"The 180 days is concerning only the I485 and subsequent use of AC21 job portability. To avail that benefit you need to stay with the employer for 180 days from the notice day."-- Is it 180 days from received date or notice date? For e.g. if my document is submitted to USCIS on Oct-29 (which is the received date) but the notice date is Jan 30. On such scenario 180 days will be calculated from Oct-29-2020 or Jan-30-2021?

[LeoAugust]

Is it 180 calendar days or 180 business days ?

Calenday days. For e.g. If your received date of document at uscis is Dec-31-2020 then Jul-01-2021 you can use AC21 to switch job.