AC21-Discussion

[SmileBaba]

pdfeb09, Q, SmileBaba,

Here is the document supporting pdfeb09's strong arguments......http://www.uscis.gov/portal/site/usc...000ecd190aRCRD

"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.

[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/usc...000ecd190aRCRD

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/usc...000ecd190aRCRD

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



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.

1. Is this considered to be similar job?
2. Do we have to notify USCIS on job change?
3. 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?
4. 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/usc...000ecd190aRCRD

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.