Spec - I am not surprised at all that we have a difference of opinion on how it should be! But ours are just opinions anyway.
I am glad USCIS issues that memo on AC21 for self-employment situation. Great relief for EB23/IC and EB3ROW.
Originally Posted by Spectator
I no longer provide calculations/predictions ever since whereismyGC.com was created.
I do run this site only as an administrator. Our goal is to improve clarity of GC process to help people plan their lives better.
Use the info at your risk. None of this is legal advice.
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I am not an expert, but think USCIS intentionally put the AC21 portability for AOS vague, to bring it on par with Consular processing who will get GC within the same timeframe of 6 months from applying for adjustment. agree with Spec that its not well thought out for the extended retrogression.
like somebody mentioned, the most they care about is the public charge scenario and should be ok with earning more than the PWD.
Thanks Sports. At least you have the same or similar view as that of mine. Guys call that Consulting business as self-employment, which in my opinion is not. I brought that into the picture without knowing nothing about self-employment at least i am still unbaked dough.
Self employment as per IRS fall into three important categories behavioral, financial, type of relationship with the employer. In general if you perform services that can be controlled by an employer like what will be done and how it will be done, then you are obviously an employee not an individual contractor.
In other words, the basis for self-employment is that the said job is should not control you by setting definitions and rules. When there are set of rules you are obliged to do the work as required by the employer and hence you are an employee.
Can all the job codes listed in the Department of Labor be self employed? No Certainly not. If the Yates memo speaks about self-employment, it directly refers to those which could be performed as individual contract. It is not to be taken granted for tailoring same/similar job as a employee into something else. If you guys look into your perm description of duties, you will know for yourself.
PS: I still hold the honesty claim is relevant to this AC21- self-employment discussion, as no one would ever submit a EVL by admitting the actual same/similar job is at the third party site rather pretend it to be available at the new company at their basement.
Last edited by Kanmani; 08-29-2014 at 10:52 AM.
Sportsfan, Kanmani,
I do see where you guys are coming from on your view against the self employment/consulting but the other side of the coin is that since there is a delay in the GC process people should not be bound to an employer or even employers in general as long as they can justify legal means to support the prescribed salary range for a job class. If you haven't been in the body shop environment then it is very difficult to udnerstand the pain and loss of income we have to go through. There have been instances in my case and with others where people were making multiples of what was handed out to us, as the prevailing wage, in commissions. I personally do not mind people making a decent comission on arranging a project/job for me but the majority of the money is supposed to go to the person doing the job. This is exactly the reason why most banks now force vendors to disclose the payments to the consultant performing the services.
Also, given the state of the economy and the general instability associated with Jobs here I would want to make the most of what is out there while the tide is in my favor without jeopardizing the immigration process. The self employment route makes that possible as I can work on a reasonable salary and still pocket the profit and once the tide sibsides then I can go back to a normal job within the same salary range that I made as self employed and not raise brows. And contrary to some beliefs, it is not improbable to have a steady source of income year around even if you are not engaged on a project as those risks are built into the rates. In other words, in the bench period there is a paycheck coming from earnings earlier and this is no different than the model followed by the large / midsze consulting firms everywhere; so why should a smaller entity be not given the same benefits.
Offcourse people will misuse this but there are laws against that like anything else.
Thanks
almost,
I must apologise for the heated arguments on the subject matter as it was not intended to sail in that direction, moreover this forum has maintained its level best to avoid them.
Coming back to your situation, I agree your point of view on how these consultancies swaha all your hardearned money. I am not against consultancies/FTE/corp-corp/abc model employments. My arguments were precisely into fitting those kind of job offer into the immigration system.
There are ofcourse certain denials related to proving ability to pay on the AC21 job offer, one of them here.......http://www.uscis.gov/sites/default/f...07_02B4203.pdf
The petitioner originally claimed to be engaged in import, export, and international trading. It seeks to employ the beneficiary as its vice-president of sales and marketing. Accordingly, it endeavored to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(l)(C), as a multinational executive or manager. According to
counsel, the original petitioner no longer intends to employ the beneficiary, since the petitioner ceased operations and the beneficiary's division was merged into a new company.' Counsel asserts that the beneficiary is now be employed by a third, unrelated company.
The petition was filed on May 21, 1998 and the director approved the petition on May 1 1, 1999. The beneficiary filed an 1-485, Application to Register Permanent Residence or Adjust Status in August 1999. The director requested further evidence to support approval of the 1-485 in February 2001 and in September 2002. Upon review of the totality of the record, the director issued a Notice of Intent to Revoke on February 27, 2003. The petitioner provided a rebuttal on April 21, 2003. After review, the director determined that the petitioner had not established its ability to pay the beneficiary the proffered wage and that the beneficiary's current position was not in a managerial or executive capacity.
In analyzing a petitioner's ability to pay the proffered wage, the fundamental focus is whether the employer is making a "realistic" or credible job offer and has the financial ability to satisfy the proffered wage. Matter of Great Wall, 16 I&N Dec. 142, 145 (Acting Reg. Comm. 1977).
In the Notice of Intent to Revoke, the director observed that the record did not substantiate that the petitioner had ever employed the beneficiary. The director concluded that the beneficiary had been unemployed prior to attempting to utilize the benefits provided under the "portability provision" of section 2040') of the Act, 8 U.S.C. § 11540), as added by section 106(c) of the American Competitiveness in the Twenty First Century Act of 2000 (~~21).Th e director concluded that the beneficiary was not eligible for the classification sought and issued the Notice of Intent to Revoke on March 25,2003.
To be continued......
Apart from ability to pay, the USCIS would take into consideration on whether the job offer is bonafide.
Here is one example of one such denial case.... http://www.uscis.gov/sites/default/f...12_02B5203.pdf
Under 20 C.F.R. §§ 626.20(c)(8) and 656.3, the petitioner has the burden of establishing that a bonafide job opportunity exists when asked to show that the job opportunity is available to U.S. workers. See Matter of Amger Corp., 87-INA-545 (BALCA 1987); see also 8 U.S.c. § 1361. On the Form ETA 750 (Item 22.h.) the employer specifically certifies that the job offer "is clearly open to any
qualified U.S. worker." A relationship invalidating a bona fide job offer may arise where the beneficiary is related to the petitioner by "blood" or it may be "financial, by marriage, or through friendship." See Matter of Sun mart 374, 00-INA-93 (BALCA May 15, 2000).
To be continued......
almost,
When you consider setting up an consultancy on your own as a family business and there is an job offer for you, I think you would agree that it cannot be considered as self-employment. I would say it is corp- corp job offer. As per Yates memo ability to pay is not an initial evidence on AC21, but the same memo calls it as secondary evidence, when and if needed the officer can go for it. Clearly, the ability of pay RFE is not out of the picture and if USCIS sends one, it is the burden of the petitioner to prove it. On further digging into proving the ability, the proffered wage must match the 'Net' income of the employer ruling out the gross income.
I agree with Sportsfan that we are emphasizing the risk factors involved in entering into this consultancy job offer but are not against your plan or trying to intimidate you. You have traveled hard in this journey so far, very close to GC in hand stage, but still waiting. Analyze and do the best for you.
All the best!
Kanmani, Sportsfan,
Thanks for your valuable inputs. My last post was merely a statement of the perspective from the other side, if you will, and certainly not meant to be argumentative. I have received a lot of insight from you both and others a well who contributed and at this point am waiting for clarity at my end before making the decision. If it all does work out then will definitely be seeking the opinion of a reputable attorney and maybe go for the paperwork through them if it looks like a feasible option.
Thanks once more to all for their inputs.
Thanks
Dear Spec, Q, MATT2012, Kanmani and other experts,
I am planning to switch jobs. My 485 has been pending approval for more than 180 days. I am now currently working on EAD and my H1-B extension application has been submitted.
I have couple of offers that are enticing : One as a Product leader.
My I-140 has the SOC code of 15-1111 (Computer and Information Research Scientists). My new Job as a product leader i believe would fall under :Computer and Information Systems Managers” (11-3021).
a) The new company would not extend my H1 (I have been doing the extensions to use as a backup if any issues arise with my 485)
b) Do you believe the SOC codes for the old and new job titles would qualify me for AC21 ?
c) Can I hire Murthy to answer question (b) and also contract with them to represent my case if any issue arises later ? My new employer uses another big law firm and I have to use them for EAD/AP processing.
Also, do let me know if you believe the job change is too much a risk.
Please advise.
Thanks in advance folks.
Best Regards,
Arjun
I am sure Kanmani/Spec will have more specific advice - but from my vantage point, your role seems like natural progression. See a helpful para in this link: http://www.cilawgroup.com/news/2012/...er-under-ac21/
In a somewhat recent teleconference, the Nebraska Service Center (NSC) provided some unofficial but helpful guidance on their reasoning and practice when adjudicating AC21-related cases. NSC was asked to provide some guidance as to their criteria in adjudicating the “same or similar” job standard. In response, NSC confirmed that the “same or similar” has not been a significant issue because NSC has been applying a “common sense” approach – NSC has confirmed that most petitions invoking AC21 portability based on similar occupations are indeed usually similar, i.e. accountant doing another accounting position, IT consultant working in the IT field. On the other hand, IT worker making “slurpees at the 7-Eleven” would not be considered to qualify under AC21.
EB2I NSC | PD: 08/07/2009 | Forum Glossary
Pundit
I am not expert on SOC codes. But generally speaking in the same line of work becoming a manager is not a big deal. That should be ok.
Having said that if you do decide to ask for AC21 advice from a lawyer - WhereismyGC.com does offer that as a service. It wouldn't hurt to spend few hundred bucks if you are looking at a promotion.
All the best on whatever you choose to do and perhaps others can shed light on SOC codes.
I no longer provide calculations/predictions ever since whereismyGC.com was created.
I do run this site only as an administrator. Our goal is to improve clarity of GC process to help people plan their lives better.
Use the info at your risk. None of this is legal advice.
Forum Glossary | Forum Rules and Guidelines | If your published post disappeared, check - Lies and Misinformation thread
Thanks imdeng. The page is informative.
With the dates retrogressing, time to move on, i guess. I will also seek the advice from lawyer (like Q mentioned) at WhereismyGC.com and take advantage of the job situation.
Hope Kanmani, You and Me get our GCs soon.
There is a USCIS memo (not regulation) that clearly states that self-employment is possible. Neither the AC21 law nor any USCIS regulation forbids self-employment. Anything not forbidden is not illegal. So it not visa fraud; no it does not even border on fraud. There is plenty of other kinds of fraud, this is not one at all.
When I-485 is filed, the USCIS should approve or deny the case in a reasonable time frame. If the application is approved, but a visa number is unavailable, they usually pre-adjudicate the application. After a period of 180 days passes, the applicant is considered to be a FREE AGENT. He does not have to employed with the same employer. Only his job duties should be the same. There is absolutely nothing wrong in the applicant working independently and doing work for a client.
Self-employment is no risky as long as the applicant can clearly show that s/he has been doing the same or similar job as an independent contractor. There is no need to set up any company or have any separation from h/im/erslf as employee and h/im/erself as employer.
Example: Computer programmer writing apps for a company, can easily write apps and sell for the new smartphone apps on his/her own. The only other requirement is that s/he should be able to support h/im/erself. There is NO NEED to have the wages at the level of what is described in the Labor application.
Go here for the AC21 Memo (page 4, question 8): http://www.uscis.gov/sites/default/f...ntrm122705.pdf
And go here to read some notes from a well-know lawyer on this matter: http://www.immigration-information.c...ployment.6206/
Last edited by nbk1976; 09-14-2014 at 09:52 PM. Reason: more info
Ability to pay is used when the officer feels the employment letter or job is shady. But if it turns out that the job offer is legitimate and the job is similar in nature, and the wages offered are above the poverty line, they have to approve the GC.
Example: Microsoft can pay $100,000 a year for a programmer, but a smaller company offering a job with similar job duties might offer only $60,000, but there may be so many other reasons to invoke AC21 and work for this company: co-ownership, flexible work hours, etc.
The wage difference is just one way for the adjudicator to see if the job is same or similar. The reasoning is that similar jobs pay similar salaries. This has always been flawed and was more often not true. Wages in NYC are different from Lakeland, FL. The company may be smaller; it may be just a startup; maybe you are getting co-ownership in the company but smaller salary, etc., etc., etc. There are so many possibilities.
Last edited by nbk1976; 09-14-2014 at 10:30 PM.
Ability to pay (levels mentioned in labor certification) has to be established only by the original petitioner. When AC21 is invoked, subsequent employers nor the applicant has this burden (as long as job offer is legitimate). Only the job type must be the same AND the applicant should not become a public charge (i.e., must be able to earn a living wage).
Last edited by nbk1976; 09-14-2014 at 10:14 PM.
When the RFE for an EVL comes along and you are self-employed or independent contractor, you submit a letter stating what you are and have been doing, and send client-letter with your name and job duties, 1099 or any other way you were getting paid, tax returns, and the fact that you have been doing this for at least 6 months - 1 year will show that the job is indefinite and your ability to find such a job is strong. Any client references about the good job you are doing and that hey want to preserve this relationship for an indefinite period would be very helpful.
But, yes, there may be a few more things to send when under self-employment, but as long as everything is LEGIT, there is no more risk here.
The least risky thing is to work for GC sponsor from day 1 to GC. But that may not be realistic for many people. The intention of AC21 was to give relief and to ensure people are not stuck with jobs and employers they have grown weary with.
Because AC 21 is not clear on self-employment, USCIS has been using the Aytes memo internally for such cases. Of course this is not USCIS regulation, only an ad hoc procedure, pending a formal policy or a new memo. But the self-employment cases are so rare that USCIS has not bothered to do anything in over 10 years. If they decide to negatively view self-employment, say because of large-scale fraud, then you cannot hold them to that memo. They will retroactively enforce any new memo or regulation.
posting after 2 months...i got my GC in October. I changed my job exactly after 182 days of filing 485. My salary was 125% higher than labor. Did not file AC21. Got RFE before becoming current. For EVL gave letter exactly as in case PERM duties (which was same and legit - fortunately) stating the actual HIGHER salary. Received my GC after responding to RFE. Key here is your job roles and responsbilities. Not salary. Wish you all good luck.. I changed employer twice..First employer checked with Rajiv khanna and told me to take a pay cut stating AC21 higher salary, which I did not accept and moved on immeidately to another employer with higher pay than first one !!! Again good luck to all.
Need little clarification on AC21 :
I am currently on EAD + H1B waiting for my dates to be current ( EB2, filling date April 2010). I already moved once two years ago within the same company same field just leadership role and filled AC21 for the change in location and job. Looking to move up within the same company one more time, similar job just senior leadership position, biggest challenge is I have to move physically within the US.
Guru’s do you see any problem if I have to file AC21 one more time? , thanks in advance for your kind input.
harapatta - congratulations on your career moves. Filing of AC21 is not mandatory at all. So why file? Even if you move within US you are covered by AC21. Of course since it's the same company and if they are paying for AC21 filing - you might do it and you might not. I don't think it makes any difference one way or other.
I no longer provide calculations/predictions ever since whereismyGC.com was created.
I do run this site only as an administrator. Our goal is to improve clarity of GC process to help people plan their lives better.
Use the info at your risk. None of this is legal advice.
Forum Glossary | Forum Rules and Guidelines | If your published post disappeared, check - Lies and Misinformation thread
thank you so much for your quick response..
Guru's ,
My PD is 2xMarch2004 EB3I.
Is it advisable to change the job now or stick with the existing employer/employment till it shuts down in aug and then change later.
we have some merger and acquisition situation at my client company. So the IT dept will be relocated to bay-area/phoenix from south. we learnt that the deal closing will be in last week of may. They would retain us for next 60 days after deal closing which is till July. I have been working for this client company for several years through once subsidiary company of the client company on EAD from 2009.
What will I have to do if I get a RFE between jobs in Sept?
is it better to just look for a new job now and join a new job in same city before RFE hits me or wait till end of august to change the job from 485 approval perspective?
Thank you so much
Last edited by krishn; 05-13-2015 at 06:48 AM.
Gurus,
Any suggestions on my job change timing (in quotes above) predicament ?
Thanks a lot in advance
krishn - if I were you I would worry about my job than green card. Your GC is almost there. Even if there is an RFE - do not worry about it at all. Make the decision that is good for your career. Do not base the decision on "How can I avoid an RFE". I hope it helps. Good luck!
I no longer provide calculations/predictions ever since whereismyGC.com was created.
I do run this site only as an administrator. Our goal is to improve clarity of GC process to help people plan their lives better.
Use the info at your risk. None of this is legal advice.
Forum Glossary | Forum Rules and Guidelines | If your published post disappeared, check - Lies and Misinformation thread
edisonguy,
Thanks for posting your experience.
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