AC21-Discussion

[Eb2_Dec07]

Gurus ,

May be not correct question for this thread . Please remove it .

My spouse who got GC EB2 I in March first week , has gone to India and worked for US employer remotely from home for 3 months with payroll run in US . On the mark of 6 months plan is to switch the employer . IS this allright ?

Thanks

[vizcard]

Gurus ,

May be not correct question for this thread . Please remove it .

My spouse who got GC EB2 I in March first week , has gone to India and worked for US employer remotely from home for 3 months with payroll run in US . On the mark of 6 months plan is to switch the employer . IS this allright ?

Thanks

After GC is approved she can do anything she wants as long as she is compliant with residency reqts of the GC.

[Desi Dude]

Please please help..............................


COMPLEX SITUATION -

1) Husband and wife on EAD. Wife derivative
2) Both I-485 pending for more than 180days
3) Wife upgrades to EB2 & ports the earlier PD using new approved I-140


QUESTIONS -

1) Does the wife become Principal and Husband Derivative?
2) Does the wife need to abide by 180 day rule now if she wants to change employer?
3) If she has to go through 180 day restriction, when does it start? Just after EB2 I-140 is approved?
4) What if wife's employer revokes the new I-140 after she leaves the employer.

[bvsamrat]

For Gurus to reply
Please add; I-485 pending on EB3 or EB2? If it makes any difference!

Please please help..............................


COMPLEX SITUATION -

1) Husband and wife on EAD. Wife derivative
2) Both I-485 pending for more than 180days
3) Wife upgrades to EB2 & ports the earlier PD using new approved I-140


QUESTIONS -

1) Does the wife become Principal and Husband Derivative?
2) Does the wife need to abide by 180 day rule now if she wants to change employer?
3) If she has to go through 180 day restriction, when does it start? Just after EB2 I-140 is approved?
4) What if wife's employer revokes the new I-140 after she leaves the employer.

[qesehmk]

EB2D - I don't see a problem other than - if the change is preplanned and somehow USCIS learns about it - they might have a problem with it.

Gurus ,

May be not correct question for this thread . Please remove it .

My spouse who got GC EB2 I in March first week , has gone to India and worked for US employer remotely from home for 3 months with payroll run in US . On the mark of 6 months plan is to switch the employer . IS this allright ?

Thanks

DD - the answers are:

#1 - I know that from porting perspective - it is automatic for the primary. So wife will get her GC based on ported date. However, for husband it may not be automatic unless husband also filed a derivative/beneficiary 485 as part of wife's original application. Wouldn't hurt to call USCIS and ask for their advice if wife gets approved and husband doesn't.
#2 - Quite likely No. However technically - USCIS/DOS can site that she is not eligible for AC21 unless she completes 6 months on the second 140.
#3 - Yes since she already has a 485 filed.
#4 - That would be unheard of but technically possible. Which is why I answered #2 the way I did.

My advice - wait for 6 months. Why take risk now that you are almos through.

1) Does the wife become Principal and Husband Derivative?
2) Does the wife need to abide by 180 day rule now if she wants to change employer?
3) If she has to go through 180 day restriction, when does it start? Just after EB2 I-140 is approved?
4) What if wife's employer revokes the new I-140 after she leaves the employer.

For Gurus to reply
Please add; I-485 pending on EB3 or EB2? If it makes any difference!

Not sure what the question is Samrat.

[Desi Dude]

Thanks for the prompt response. I would like to clarify further -

Husband's case is EB2 but with a later PD than wife's EB3 PD. Original I-485 was through Husband and not wife. Wife was derivative.

Are you suggesting Husband to file another I-485 as a derivative?

I guess as long as Wife's employer doesn't revoke her newly approved EB2 I-140, she should be able to do anything, including leaving the employer.

Also, once wife's EB2 I-140 is approved, Husband should become the derivative and will be free to leave employer or do anything else.

[Kanmani]

Desi Dude

What you have to do is, ask your attorney to write a letter to the uscis claiming to adjudicate your already pending I-485 application as dependent by using the your wife's PD. This is usually done when husband and wife have two separate EB AOS cases.

Yes once you get your GC as a dependent of your Wife's case, you are free to change jobs any time.

[Desi Dude]

Desi Dude

What you have to do is, ask your attorney to write a letter to the uscis claiming to adjudicate your already pending I-485 application as dependent by using the your wife's PD. This is usually done when husband and wife have two separate EB AOS cases.

Yes once you get your GC as a dependent of your Wife's case, you are free to change jobs any time.

You mean, after she gets PD ported to EB2?

Also still confused about whether she can leave her employer after porting & before 180 days.

[Kanmani]

Desi Dude,

Your original post says your wife has ported her Eb3 PD to Eb2 PD.

As this is a porting case, I think the AC21 applicability might start after the interfiling letter is acknowledged by the uscis.

[Desi Dude]

Desi Dude,

Your original post says your wife has ported her Eb3 PD to Eb2 PD.

As this is a porting case, I think the AC21 applicability might start after the interfiling letter is acknowledged by the uscis.

Oh, thats bad news.

Although, she is in good terms with her employer, and the employer won't revoke her new I-140. Which means she can still leave her employer within 180 days of interfiling and then apply AC21 after 180 days.

Also, after the interfiling mail, husband will become Derivative. Will he need to do anything else?

[Kanmani]

Oh, thats bad news.

Although, she is in good terms with her employer, and the employer won't revoke her new I-140. Which means she can still leave her employer within 180 days of interfiling and then apply AC21 after 180 days.

Also, after the interfiling mail, husband will become Derivative. Will he need to do anything else?

Her employer may be ok with the job change before 180 days, but she is not complying with the 180 days requirement to invoke Ac21 applicability. For instance, if there is an RFE asking to prove her employment for the said period how do you intend to prove? No employer will help you with providing false pay stubs!!!!!!!

[yank]

Gurus-

I have a new job opportunity which I don't want to miss. I have completed 180 days’ time after filing my I-485.
I was bit unlucky and got RFE in the month of March 2012 and my PD is Jan 2008. RFE got cleared but unfortunately dates had retrogressed.
Please suggest the paper work required to file AC21 and what exactly needs to be done if I want to change the employer. My roles and responsibilities are going to same as I am moving from a consulting position to a FTE. I have searched AC21 form but couldn't found it. Not sure if it actually exists.

[Desi Dude]

Her employer may be ok with the job change before 180 days, but she is not complying with the 180 days requirement to invoke Ac21 applicability. For instance, if there is an RFE asking to prove her employment for the said period how do you intend to prove? No employer will help you with providing false pay stubs!!!!!!!

Maybe I'm wrong, but as I understand, I-485 is for future employment. You don't have to be working for the employer or even be in the country while I-485 is pending. Wife is on EAD, she can even sit at home if she wants.

I guess as long as the employer doesn't revoke her EB2 I-140 within 180 days of interfiling, she can do whatever she wants.

[Kanmani]

Maybe I'm wrong, but as I understand, I-485 is for future employment. You don't have to be working for the employer or even be in the country while I-485 is pending. Wife is on EAD, she can even sit at home if she wants.

I guess as long as the employer doesn't revoke her EB2 I-140 within 180 days of interfiling, she can do whatever she wants.

Desi Dude , You are contradicting your original post. You wanted to know if she can leave the employer before completion of 180 days of I-485filing.
When somebody uses AC21 to change employers they are not bound with the sponsoring employer for that future employment described in the perm.

I agree that GC is future employment and the beneficiary is not required to be physically present in US etc. When you file I-485 as a future employee, you must join the employer after receiving your GC.

The sentence marked in blue is correct only if she has worked for the sponsor in that specific job for 180 days. She can't sit at home and count 180 days to leave the employer.

Hope you understand

[Kanmani]

Gurus-

I have a new job opportunity which I don't want to miss. I have completed 180 days’ time after filing my I-485.
I was bit unlucky and got RFE in the month of March 2012 and my PD is Jan 2008. RFE got cleared but unfortunately dates had retrogressed.
Please suggest the paper work required to file AC21 and what exactly needs to be done if I want to change the employer. My roles and responsibilities are going to same as I am moving from a consulting position to a FTE. I have searched AC21 form but couldn't found it. Not sure if it actually exists.

Yank,

There is no such form exists. It is merely a letter to uscis along with the new job offer ( like EVL) for their records. You can ask the new employer(attorney) to take care of your AC21 related correspondences before joining them.

[Desi Dude]

Desi Dude , You are contradicting your original post. You wanted to know if she can leave the employer before completion of 180 days of I-485filing.
When somebody uses AC21 to change employers they are not bound with the sponsoring employer for that future employment described in the perm.

I agree that GC is future employment and the beneficiary is not required to be physically present in US etc. When you file I-485 as a future employee, you must join the employer after receiving your GC.

The sentence marked in blue is correct only if she has worked for the sponsor in that specific job for 180 days. She can't sit at home and count 180 days to leave the employer.

Hope you understand

So you are suggesting, the wife should stick with her employer for 180 days after the interfiling email? But what if she is sure that employer won't revoke her I-140, then she can switch jobs before 180 days right?

[Kanmani]

Desi Dude

I am not suggesting anything here. All I am trying to explain is the concept of AC21 rule . The 180 days concept is the flexibility extended to the potential immigrants who have their I-485 pending while their physical GC is at the end of the tunnel. It has nothing to do with the revocation or assurance to protect the I-140 by the employer.

It is the law.

For example,
The concept of EB based GC is that the recipient must work for the sponsoring employer after GC . Here your wife will be the recipient . So, she must join the employer after GC. Ok. What if she is already working for the sponsoring employer and GC for retrogressed countries could take 5 to 6 years and doesn't want to continue in the position ? She has to resign the job and go to another employer and start again the new GC process .

If anybody has a pending I -485, then they are lucky not required to start the GC all over again.

AC21 portability rule allows the I-485 application remain valid if the applicant changes the employer after 180 days of filing . In an instance of changing employer, the uscis must be informed of the change of job by submitting a employment offer letter in a same or similar position with the job acceptance letter and attorney's covering letter.

[bvsamrat]

So much water flown under the bridge

Anyway I requested original poster to clarify if his I-485 is on EB3 or EB2. but he answered in next post

==========================
Not sure what the question is Samrat.[/QUOTE]

[Desi Dude]

I understand what you saying about AC21. But this situation is different. AC21 doesn't talk about interchanging Primary & Derivative. That's why the confusion.

This is what you quoted in your previous post "AC21 portability rule allows the I-485 application remain valid if the applicant changes the employer after 180 days of filing"

Going by your quote Wife has already completed 180 days of filing I-485 as derivative. The law doesn't say anything about what will happen if now she becomes primary and husband derivative and if her employer revokes I-140 before 180 days of Interfiling (which is when she became Principal)

[Kanmani]

Here is my last and final comment in this discussion.


As you claim, this situation is no different than other cases. Your wife is upgrading her pending I-485 to primary status and the AC21 rule always talk about the Primary applicant not the derivative.

1.When has she become primary? Answer : On the day USCIS acknowledges the request letter for upgradation ( which is also called interfiling).

2. When will AC21 applicable ? Answer : on completion of 180 days as primary applicant

3. Has she completed 180 days as primary? Answer : No

4. Can she change job before completing 180 days as primary : No

5. She has completed 180 days as dependent applicant, will it count : No

6. Husband and Wife's application are already verified by the Immigration officer, does it need another adjudication ? Yes . Those applications have to be adjudicated again with wife as primary applicant .

Interfiling just replaces the requirement of filing new I-485 applications for your wife as primary and you as dependent. *
Thanks

[Desi Dude]

Thanks a lot Kanmani. You have been very helpful. The only concern I had was #4 in your response.

She can actually change job before 180 days, but not the sponsor. It's a risk, but the law doesn't stop her from changing employer (especially if she has good relations with the employer).

[Kanmani]

I'll put the #4 like this with what law says in this situation


4. Can she change job before completing 180 days as primary : YES and No

YES : Job changed before 180 days -------> Applicant by law has to work for the GC sponsor after receiving Green Card. (AC21 not protected)

NO : Job changed after 180 days -------> Applicant by law not required to join the GC sponsor after receiving Green Card. (AC21 protected)

[Desi Dude]

You are right, however, if the job is changed before 180 days and then AC21 evoked after 180 days, she won't have to work with the original employer ever.

[Desi Dude]

I'm confused now. What will happen if she changes employer but the original employer doesn't revoke I-140.

[Pedro Gonzales]

I'm confused now.

You and everyone else that's read this thread, man.