AC21-Discussion

[pdfeb09]

1. Does anyone know what kind of documents would the New Employer have to provide if there was an RFE after AC21 option was exercised?

2. What can the USCIS ask the new employer to prove?

3. Would the new employer have to prove that they tried to recruit a citizen and failed?

4. How about the financial information?

Kanmani, I am hoping you would be able to throw some govt. documents at me and explain them a bit.

[qesehmk]

pdfeb - I can tell you with certainty that #3 is NOT a requirement. So rest assured there.

I will let others answer the rest of your questions.

1. Does anyone know what kind of documents would the New Employer have to provide if there was an RFE after AC21 option was exercised?

2. What can the USCIS ask the new employer to prove?

3. Would the new employer have to prove that they tried to recruit a citizen and failed?

4. How about the financial information?

Kanmani, I am hoping you would be able to throw some govt. documents at me and explain them a bit.

[Kanmani]

pdfeb09,

Your questions are very important before considering the job change, but I neither have real time experience in the subject nor have answers for them . Here are some links which may be useful for you


http://www.uscis.gov/portal/site/usc...004718190aRCRD
http://www.uscis.gov/USCIS/Laws/Memo...ntrm122705.pdf

http://www.uscis.gov/USCIS/Laws/Memo...21_30may08.pdf

http://www.uscis.gov/USCIS/Laws/Memo...ntrm051205.pdf

PS: I like to see someone who have actually availed AC21 portability to respond to your questions.

[pdfeb09]

pdfeb - I can tell you with certainty that #3 is NOT a requirement. So rest assured there.

I will let others answer the rest of your questions.

Q,

Thanks for the response. In fact, after I posed a few questions on this forum, I went hunting for the answers myself. I have reproduced below what I understood from the various memos.

SOURCE: AC21 Aytes Memo 27Dec2005 has a lot of good information.

1. The new employer usually does not have to provide any documents besides the standard EVL that establishes the job duties, the pay and the intent of the employer to keep the employee on the payroll after GC is issued.
2. USCIS "may" ask the employer to prove that their business is legitimate (prove that their business exists outside the aliens' requirements and position) and that the employee will NOT become a public charge. It comes close to proving the "Ability To Pay" as in I140 application. If the new employer is pretty well-known, there is a less chance of this being asked.
3. As Q has answered, the new employer is NOT required to prove that they went through the same hassles. All they need is an intent to employ you and ability to pay you.
4. See 2 and 3 above. They may have to submit financial documents to prove the legitimacy of the business and to prove that the employee will not be a public charge.

As for some questions posted by me in the Calculations and Predictions Thread (And now Deleted from there to maintain the sanctity of the thread):

1. AC21 protects the I485 application after 180 days from the receipt date of application, in case of a job change, right?
2. What happens if, once eligible for AC21, a person loses/quits his job and is unemployed for some period of time?
3. Can a person take up another job, with similar description and role, after a gap of say a few months but before his time to receive a GC comes by?
4. Is continuous employment absolutely essential (and may be required to be proven) post 180 days after filing?

Kanmani's Reply to 1.

" pdfeb09,
1. Yes. Attorneys are counting 180 days by excluding the RD . I have no comments for the rest of your doubts. "

2.,3. and 4. are really similar and so the reply, as I understand it is:

It is NOT absolutely mandatory to have a continuous employment after 180 days have passed since you applied for your I 485. However, it is absolutely mandatory that you have a legitimate job offer in hand from a provable legitimate business when your I485 is adjudicated.

Since the actual adjudication can take place at any time, and since USCIS may issue an RFE at that time for an EVL, it is good to have the next job as soon as possible for as long as possible. It is NOT advisable to stay without a job during the period.

It is also possible to be Self-Employed, so long as you can prove your business is legit and that you will be able to sustain your salary.

If you file for AC21 once you change a job, and it is very advisable that you do, then USCIS may adjudicate your pre-adjudicated file again with this new information and can issue an RFE for the legitimacy of business and offer, and so there will be 2 adjudications in such as case. You should have a legitimate job offer at each time.

If your previous employer Revokes your I140, even after 180 days have passed since you applied for I485, USCIS will immediately issue a NOID .. you must submit AC21 relevant information along with a legit offer within 30 days to avoid getting rejected. This whole thing can be avoided if you file the AC21 related documents as soon as you change jobs.

It is not essential to wait with the employer for 180 days after filing I485 to invoke AC21. You could do it on the next day !!! However, if the employer revokes your I 140 within the 180 days period, your AC21 and consequently your I485 will be automatically denied !!

SO even if it is not essential, it is strongly advisable to stay with the employer for at least 180 days after filing I 485.

I AM NOT A LAWYER. THESE ARE MY OPINIONS AND SHOULD NOT BE CONSTRUED AS A LEGAL ADVICE !

[pdfeb09]

pdfeb09,

Your questions are very important before considering the job change, but I neither have real time experience in the subject nor have answers for them . Here are some links which may be useful for you

PS: I like to see someone who have actually availed AC21 portability to respond to your questions.

Thanks Kanmani. I did some research. It may not be as good as some of you guys do here, but it may help someone.

[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.

[qesehmk]

smilebaba - I hope I am wrong - but AC21 was meant for those people who would've been working for an employer for those 180 days (since filing of 485) and now want to leave that employer.

In your case 180 days would be passed but hte condition of having worked for employer A during those 180 days wouldn't be passed.

I am not sure how cut and dry teh law is. I am sure there must be some room for interpretation though.

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.

[SmileBaba]

Thanks for the reply Q.
It's a shame that there is no definite language on this law and the blood-sucking lawyers like this fact to suck blood out of us.

[pdfeb09]

Thanks for the reply Q.
It's a shame that there is no definite language on this law and the blood-sucking lawyers like this fact to suck blood out of us.

SmileBaba,

So far as I understand, if Employer A did not revoke your I140 petition during the 180 days since you filed I485, then you are good !

I say that because, when the Employer A filed your labor and I140, there was every intention on the employer's part to employ you. There was every intention on your part to join the employer (at least on paper).

If, after 180 days of filing I485, you decide to work for Employer B, you are allowed to do so under AC21. Make sure that Employer B is willing to establish that the business is legit and that they are well off to pay you.

You should invoke AC21 ASAP if you have completed your 180 days, because if the Employer A senses that you are not coming back, he/she may revoke your I140 (even if it is past 180 days since you filed 485). If the employer revokes I140 before you file AC21, USCIS will send you a NOID(Notice of Intention to Deny), at which point you will have to submit all the AC21 related documents anyways. Better do it before USCIS goes through the hassle and treats your case with extra caution.

I just noticed that you filed in April 2012. I would suggest NOT to tick your employer A off until the 180 days deadline passes. But make sure you do the right AC21 procedure after that if you do not intend to go back to Employer A.

Of course, you MUST CONSULT A LAWYER and get his/her advice.

I AM NOT A LAWYER AND THIS IS JUST MY OPINION, NOT A LEGAL ADVICE.

[pdfeb09]

smilebaba - I hope I am wrong - but AC21 was meant for those people who would've been working for an employer for those 180 days (since filing of 485) and now want to leave that employer.

In your case 180 days would be passed but hte condition of having worked for employer A during those 180 days wouldn't be passed.

I am not sure how cut and dry teh law is. I am sure there must be some room for interpretation though.

Q,

So far as I understand, AC21 is a provision for the people who do not want to join the petitioning employer, despite the initial intention to do so, because sufficient time has elapsed since the intention was first proclaimed. You do not have to be working with your petitioning employer so long as there was a provable intent on both the sides at the time of petition (and at the time of filing I485). AC21 is required to communicate to the USCIS that the intention has now changed. So long as the beneficiary is filling up a "Same Or Similar" job position at another legitimate employer, the Adjustment of Status procedure would be carried out without a problem, barring other issues.

Long story short, the employee does not have to be working for the petitioning employer to invoke AC21. But the employee must invoke AC21 to let USCIS know that the petitioning employer is no more in picture and that another employer will be keeping the employee off the public charge.

AGAIN, I AM NOT A LAWYER AND THIS IS NOT A LEGAL ADVICE.

[Kanmani]

Q,

So far as I understand, AC21 is a provision for the people who do not want to join the petitioning employer, despite the initial intention to do so, because sufficient time has elapsed since the intention was first proclaimed. You do not have to be working with your petitioning employer so long as there was a provable intent on both the sides at the time of petition (and at the time of filing I485). AC21 is required to communicate to the USCIS that, even though there was an intent on both the sides to work together at the time of I140 and I485, since there has been 6 months, the intention has now changed. So long as the beneficiary is filling up a "Same Or Similar" job position at another legitimate employer, the Adjustment of Status procedure is carried out without a problem, barring other issues.

Long story short, the employee does not have to be working for the petitioning employer to invoke AC21. But the employee must invoke AC21 to let USCIS know that the petitioning employer is no more in picture and that another employer will be keeping the employee off the public charge.

AGAIN, I AM NOT A LAWYER AND THIS IS NOT A LEGAL ADVICE.

pdfeb09,

Whenever an I-485 is filed for future employment, the beneficiary cannot avail this flexibility . This is how the lawyers have interpreted the law which is now in practice.

j) JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE- A petition under subsection (a)(1)(D)for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.”.

(2) Section 212(a)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)(A))is amended by adding at the end the following new clause:

“(i v) LONG DELAYED ADJUSTMENT APPLICANTS- A certification made under clause (i) with respect to an individual whose petition is covered by section 204(j) shall remain valid with respect to a new job accepted by the individual after the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the certification was issued.”.

The law permits to change jobs/employers. But it doesn't provide any information about not joining the employer at all. My opinion is that , whenever an employer in the above situation challenges the employee (future employment) for GC fraud, the AC21 rule cannot be applied for protection.

[pdfeb09]

pdfeb09,

Whenever an I-485 is filed for future employment, the beneficiary cannot avail this flexibility . This is how the lawyers have interpreted the law which is now in practice.

j) JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE- A petition under subsection (a)(1)(D)for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.”.

(2) Section 212(a)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)(A))is amended by adding at the end the following new clause:

“(****) LONG DELAYED ADJUSTMENT APPLICANTS- A certification made under clause (i) with respect to an individual whose petition is covered by section 204(j) shall remain valid with respect to a new job accepted by the individual after the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the certification was issued.”.

The law permits to change jobs/employers. But it doesn't provide any information about not joining the employer at all. My opinion is that , whenever an employer in the above situation challenges the employee (future employment) for GC fraud, the AC21 rule cannot be applied for protection.

Kanmani,

With all due respect, the "Jobs" here actually refer to the "Job Offer" that was used while applying for the Labor and filing I140. The rule deals with the "Job Offer" that was given to the (future) employee.

If you read through the various memos, and the wordings on USCIS and other gov. sites, (Most of the sources referred by you) you will NOT find it referring to "existing employer" as in one where the employee is "currently working" .. it refers to "Change Of Jobs" .. but not to the existing relationship....

Of course, the Lawyers can interpret it the way they want and they are really the ones to "defend" (may be) your case if the hell breaks loose.. However, GC IS for future employment and there is "NO" requirement like the employer-employee relationship for the Labor and I140 to be filed ... there needs to be an intent of such a relationship while filing the labor and I140....

AC21 allows you to take up a job with a different employer, even if your petition is filed by a different one, provided you have I485 pending for a long time (6 months = 180 days) ..


Answer these questions(Granted, the questions are kind of theoretical, but valid in my opinion):
Do you have to be employed for your GC to be filed under EB category? -- My answer is "NO". You could be on H4 and some employer can file the labor and I140 and even I485 for you.
What happens in case where Labor,I140 and I485 are all filed for a person NOT on any work permit, but legally in US, and 180 days have passed? Is AC21 applicable in such a case? ----- My answer is "YES".
Who is Employer 1 in the above case and what does a "Job change" mean in this situation with regards to AC21?


As for the challenge of the employer claiming GC fraud, the 180 days period covers that in my opinion. Now, the USCIS may take a closer look at the other aspects of the application. However, I do not think revoking I140 to claim that there was a GC fraud after 180 days will work in the employer's favor.

The employer 1 has only one recourse. Make sure that the employee joins the company immediately after the EAD is issued to assess the intention. If the employee does not join the Employer with the EAD, the employer may revoke the I140 within 180 days. Failing to do so within the 180 days will set the the employee (sort of) free.

AGAIN, I AM NO LAWYER ... ( I will not be the one defending you in court if it comes to that, Nor is my lawyer's license at stake here ) THIS IS NOT A LEGAL ADVICE.

[qesehmk]

pdfeb - what you say below makes sense to me. I hope smilebaba will smile now

Q,

So far as I understand, AC21 is a provision for the people who do not want to join the petitioning employer, despite the initial intention to do so, because sufficient time has elapsed since the intention was first proclaimed.

Kanmani - the onus here would be on the law to lay out what would be excluded. Since the language as you mentioned doesn't specifically require smilebaba (or a candidate like him) to fulfil 180 days employment condition with teh petitioning employer.

[Kanmani]

pdfeb09,

I agree with you. The job referred is not the actual job but the job offer.

In contradiction the attorneys are advicing in the other way. As we had issues in filing I-485, we consulted two attorneys , both confirmed that whenever AOS is filled for future employment, we must join the sponsor and work for atleast 180 days after GC. At the time of our consultation, we were facing a potential merger of sister companies into one company. The lawyers said Ac21 portability rules vary case by case and adj by adj. So we were adviced to start a new GC in parallel . Anyway we didn't file as a future employee.


Thanks Q.

[SmileBaba]

Thanks for the detailed debate guys! Thanks PDFeb09, Kanmani & Q!
So based on debate can I safely assume that AC21 should be ok in my circumstances?

[pdfeb09]

pdfeb - what you say below makes sense to me. I hope smilebaba will smile now

Thanks Q.

pdfeb09,

I agree with you. The job referred is not the actual job but the job offer.

In contradiction the attorneys are advicing in the other way. As we had issues in filing I-485, we consulted two attorneys , both confirmed that whenever AOS is filled for future employment, we must join the sponsor and work for atleast 180 days after GC. At the time of our consultation, we were facing a potential merger of sister companies into one company. The lawyers said Ac21 portability rules vary case by case and adj by adj. So we were adviced to start a new GC in parallel . Anyway we didn't file as a future employee.

Thanks Q.

Kanmani,
Sorry to hear about the issues you faced. In this long drawn out process, we all tend to rely on our attorneys to make life changing decisions for us. Hopefully this will become easier in future.

I don't know how it would have played out while applying for I485, since AC21 protects your I485 after the fact.

Moreover, it is also a good idea to join the employer, if you have not already done so, and work for 6 months after GC. Only in the case of AC21, the employer you should join for at least 6 months is your new employer. But you would already be working for him anyways.

[pdfeb09]

Thanks for the detailed debate guys! Thanks PDFeb09, Kanmani & Q!
So based on debate can I safely assume that AC21 should be ok in my circumstances?

You are welcome !
Yes, So long as your current employer does not revoke your I140 within 180 days of filing I485. (This is a very simplistic answer. I believe you have an attorney to consult.)

[Kanmani]

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)

[qesehmk]

Kanmani - you are our the best when it comes to digging out obscure info!! Great. Thanks.

pdfeb09, Q, SmileBaba,

Here is the document supporting pdfeb09's strong arguments...... http://www.uscis.gov/ilink/docView/A...html#0-0-0-375

"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)

[SmileBaba]

You guys Rock!

pdfeb09, Q, SmileBaba,

Here is the document supporting pdfeb09's strong arguments...... http://www.uscis.gov/ilink/docView/A...html#0-0-0-375

"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)

[qesehmk]

Kanmani - this might also mean that there practically is no waiting period after GC approval as long as those 180 days have passed.

The reason being - the whole of point of AC21 is really to ensure that the adjudicating officer knows that you have actually taken employment in same or similar field.

Once the officer has approved the petition - and a candidate takes up another same or similar job - who is that going to be verified by? So i would imagine that one can take another job on day 2 of GC approval. Again ... that may be risque, but that seems logical to me.

What do you and others think?

pdfeb09, Q, SmileBaba,

Here is the document supporting pdfeb09's strong arguments...... http://www.uscis.gov/ilink/docView/A...html#0-0-0-375

"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)

[Kanmani]

Q,


Attorneys do switch to a safe mode during consultation and are much under confident to challenge the vague portability rules or no one of us is willing to challenge the uscis at the cost of our peace of mind .

At this moment this is what the uscis had interpreted from the law and passed it on to the adjudicators. The same explanation is not in the law infact I tried and failed to find some relevant information in the AC-21 amendment language itself.

But, these guidelines may change time to time, at some point we may not be vigilant in digging documents and there will be an instance we may miss an interim memo circulated to the adjudicators which would withhold the current memo.

What do you think?

[pdfeb09]

pdfeb09, Q, SmileBaba,

Here is the document supporting pdfeb09's strong arguments...... http://www.uscis.gov/ilink/docView/A...html#0-0-0-375

"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)

Kanmani,

I don't know if you have some sixth sense or what .. but you are THE BEST ! I did not think we will find an exact wording on any of the govt. portals... but you are too good ...

I got the feeling for what I was saying by going through the memos primarily !! Especially the 27 Dec 2005 Aytes Memo ... it makes the intentions of AC21 very clear .. support that with the other memos and you get a good picture.

What you have found out is GOLD ! A BIG Thank You !

[pdfeb09]

Kanmani - this might also mean that there practically is no waiting period after GC approval as long as those 180 days have passed.

The reason being - the whole of point of AC21 is really to ensure that the adjudicating officer knows that you have actually taken employment in same or similar field.

Once the officer has approved the petition - and a candidate takes up another same or similar job - who is that going to be verified by? So i would imagine that one can take another job on day 2 of GC approval. Again ... that may be risque, but that seems logical to me.

What do you and others think?

Q, usually the 6 months post GC are recommended for a smooth operation during the Citizenship process 5 yrs later. I have no idea why that would matter, but that's what ppl. say and believe. OTOH I have a friend who changed not only his job, but also his entire field of working, exactly 1 week after getting his GC !!!

Q,


But, these guidelines may change time to time, at some point we may not be vigilant in digging documents and there will be an instance we may miss an interim memo circulated to the adjudicators which would withhold the current memo.

What do you think?

That is actually very true. AC21 is currently interpreted using a bunch of Memos only. The interpretation can change anytime and everybody MUST use caution while treading.

[qesehmk]

Very well put. I agree - especially to the "peace of mind" piece!!

Q,


Attorneys do switch to a safe mode during consultation and are much under confident to challenge the vague portability rules or no one of us is willing to challenge the uscis at the cost of our peace of mind .

At this moment this is what the uscis had interpreted from the law and passed it on to the adjudicators. The same explanation is not in the law infact I tried and failed to find some relevant information in the AC-21 amendment language itself.

But, these guidelines may change time to time, at some point we may not be vigilant in digging documents and there will be an instance we may miss an interim memo circulated to the adjudicators which would withhold the current memo.

What do you think?

pdfeb - we are on the same page. Thanks. I know there are many of us who wouldn't care much for citizenship. Ability to work without restrictions is a big plus in itself. But for those who do care it indeed is a good idea to wait 6 months.