AC21 Questions from Primus

[primus]

I came to know about this forum today only from a friend. I regret I should have seen this site earlier.

I have 5 questions, and hope gurus can give answer to them (my priority date is Sep 2006 EB2):

1) Everyone suspects date will move back in October 2013. If that happens and date retrogress beyond Sep 2006, then I would have to wait again for date to become current and then only I will get EAD card and consequently GC?


2) If date moves back, then how long I need to remain working with my GC sponsoring employer? Can I leave the employer after 180 days from the day my I-485 is filed but GC has not come?


3) If date moves back, and I get laid off 30 days after I-485 filing, then how such situation will affect my GC?


4) Does USCIS processes I-485 application on FIFO (on priority date) or randomly or as they receive I-485 applications?


5) I guess the first day, i.e. 1st August '13, almost everyone will send their I-485 application. So I-485 application should be sent by lawyer 2 days before Aug 1st, so that it reaches by Aug 1st? (may be this sound stupid question, but I could not resist myself to sound stupid

[vizcard]

I came to know about this forum today only from a friend. I regret I should have seen this site earlier.

I have 5 questions, and hope gurus can give answer to them (my priority date is Sep 2006 EB2):

1) Everyone suspects date will move back in October 2013. If that happens and date retrogress beyond Sep 2006, then I would have to wait again for date to become current and then only I will get EAD card and consequently GC?


2) If date moves back, then how long I need to remain working with my GC sponsoring employer? Can I leave the employer after 180 days from the day my I-485 is filed but GC has not come?


3) If date moves back, and I get laid off 30 days after I-485 filing, then how such situation will affect my GC?


4) Does USCIS processes I-485 application on FIFO (on priority date) or randomly or as they receive I-485 applications?


5) I guess the first day, i.e. 1st August '13, almost everyone will send their I-485 application. So I-485 application should be sent by lawyer 2 days before Aug 1st, so that it reaches by Aug 1st? (may be this sound stupid question, but I could not resist myself to sound stupid

1) You will get EAD even if you are not current as long as you applied when you were current.
2) Yes. You would need to find a "similar" job and let the USCIS know about it with a letter.
3) I believe you would need to start the GC process all over again with a new employer.
4) We had a discussion about this a few pages back...as long as you are current, I believe its by receipt date otherwise its by priority date
5) you can try that but if your application reaches on July 31st instead of Aug 1, it will be rejected.

[qesehmk]

sun, yes. (ROW here includes MP as well).

Q- your calculation of EB2-ROW quota includes FB allocation too? In another workds are you looking for EB2-ROW to consume around 37-38 K or more?

Primus - welcome. I have answered the best I could.

1) Everyone suspects date will move back in October 2013. If that happens and date retrogress beyond Sep 2006, then I would have to wait again for date to become current and then only I will get EAD card and consequently GC?
EAD you can get regardless of retrogression - as long as 485 was filed. To get GC needs to be current.

2) If date moves back, then how long I need to remain working with my GC sponsoring employer? Can I leave the employer after 180 days from the day my I-485 is filed but GC has not come?
Yes.

3) If date moves back, and I get laid off 30 days after I-485 filing, then how such situation will affect my GC?
As long as employer doesn't withdraw underlying 140 - you are safe and just have to wait till 180 days reach. However, between 31-180th day make sure your maintain your visa status by changing jobs. Just in case you can't find job and your H1 status lapses, perhaps you do get to benefit AOS status and don't have to leave US. But please confirm with Spec or Kanmani who are gurus here especially when it comes to these kind of technicalities.

4) Does USCIS processes I-485 application on FIFO (on priority date) or randomly or as they receive I-485 applications?
I think the processing is a combination of multiple filters. Country - category - PD and then RD in that order. When first 2 are same and third is similar, RD is generally followed. When PD and RD is similar, it is random IMO. The general principle is people shouldn't have to wait unfairly in the processing queue.

5) I guess the first day, i.e. 1st August '13, almost everyone will send their I-485 application. So I-485 application should be sent by lawyer 2 days before Aug 1st, so that it reaches by Aug 1st? (may be this sound stupid question, but I could not resist myself to sound stupid

I guess you can do that. Just make sure it doesn't reach July 31st. Because then USCIS will probably send it back.

[SmileBaba]

I came to know about this forum today only from a friend. I regret I should have seen this site earlier.

I have 5 questions, and hope gurus can give answer to them (my priority date is Sep 2006 EB2):

2) If date moves back, then how long I need to remain working with my GC sponsoring employer? Can I leave the employer after 180 days from the day my I-485 is filed but GC has not come?

2) Yes. You would need to find a "similar" job and let the USCIS know about it with a letter.

Letting USCIS know about job change via letter (or filing AC21) is not a "Requirement". One can change jobs to a same or similar occupation after 180 days of I485 filing without sending any sort of communication to USCIS.

As one top lawyer says, USCIS would like you to inform them but as I said earlier it's not a requirement.

[vizcard]

Letting USCIS know about job change via letter (or filing AC21) is not a "Requirement". One can change jobs to a same or similar occupation after 180 days of I485 filing without sending any sort of communication to USCIS.

As one top lawyer says, USCIS would like you to inform them but as I said earlier it's not a requirement.

While it is not a requirement, it is highly recommended.

If the previous employer withdraws the 140, there's no way for the adjudicator to know that you have used AC21. The adjudicator will have to issue a Notice of Intent to Deny and you would have to respond to it within 30 days. This may just prolong the adjudication process and dates might retrogress.

[qesehmk]

Viz - I think it's a personal matter of perception of risk. So I will only speak for myself. I wouldn't risk adjudicator receiving another reason to issue and RFE by sending AC21 related info to adjudicator.

I would rather take a chance that employer doesn't revoke 140 and even if s/he does that adjudicator ignores it given that 180 days have passed.

While it is not a requirement, it is highly recommended.

If the previous employer withdraws the 140, there's no way for the adjudicator to know that you have used AC21. The adjudicator will have to issue a Notice of Intent to Deny and you would have to respond to it within 30 days. This may just prolong the adjudication process and dates might retrogress.

[Kanmani]

Viz - I think it's a personal matter of perception of risk. So I will only speak for myself. I wouldn't risk adjudicator receiving another reason to issue and RFE by sending AC21 related info to adjudicator.

I would rather take a chance that employer doesn't revoke 140 and even if s/he does that adjudicator ignores it given that 180 days have passed.

Q, I agree with your view. But there is a drawback that G-28 authorization still validates the old attorney, any RFEs will be directed to them.

If the I-485 is self-filed or filed by private attorney of our choice, we can choose between AC21 or wait for RFE.

[qesehmk]

Very good point. So perhaps I would revoke the G-28 authorization to attorney or grant one to a new one.

Q, I agree with your view. But there is a drawback that G-28 authorization still validates the old attorney, any RFEs will be directed to them.

If the I-485 is self-filed or filed by private attorney of our choice, we can choose between AC21 or wait for RFE.

[vizcard]

Viz - I think it's a personal matter of perception of risk. So I will only speak for myself. I wouldn't risk adjudicator receiving another reason to issue and RFE by sending AC21 related info to adjudicator.

I would rather take a chance that employer doesn't revoke 140 and even if s/he does that adjudicator ignores it given that 180 days have passed.

Oh i totally agree with you. I just felt the need to explain the risks to the original poster.

[primus]

@vizcard @qesehmk @Kanmani @SmileBaba @vizcard Thank you guys for answering my question. Appreciate your input. However answer of my 2nd question was not very clear. That was:

2(a): If date moves back, and I apply for I-485 on Aug 1st, then how long do I need to keep working with my GC sponsoring employer (considering date retrogress on Sept 13) ? Because, I want to leave the employer asap and join other company.

2(b): If I leave the employer before 180 days from the day my I-485 is filed but GC has not come. And join similar job with other employer on H1. And my GC sponsorping employer has not withdrawn my I-140. In such situation, would I have to re-start PERM and another I-140 filing from new employer?

[qesehmk]

primus - I did answer them. Pl check a few pages back .

@vizcard @qesehmk @Kanmani @SmileBaba @vizcard Thank you guys for answering my question. Appreciate your input. However answer of my 2nd question was not very clear. That was:

2(a): If date moves back, and I apply for I-485 on Aug 1st, then how long do I need to keep working with my GC sponsoring employer (considering date retrogress on Sept 13) ? Because, I want to leave the employer asap and join other company.

2(b): If I leave the employer before 180 days from the day my I-485 is filed but GC has not come. And join similar job with other employer on H1. And my GC sponsorping employer has not withdrawn my I-140. In such situation, would I have to re-start PERM and another I-140 filing from new employer?

[vizcard]

@vizcard @qesehmk @Kanmani @SmileBaba @vizcard Thank you guys for answering my question. Appreciate your input. However answer of my 2nd question was not very clear. That was:

2(a): If date moves back, and I apply for I-485 on Aug 1st, then how long do I need to keep working with my GC sponsoring employer (considering date retrogress on Sept 13) ? Because, I want to leave the employer asap and join other company.

2(b): If I leave the employer before 180 days from the day my I-485 is filed but GC has not come. And join similar job with other employer on H1. And my GC sponsorping employer has not withdrawn my I-140. In such situation, would I have to re-start PERM and another I-140 filing from new employer?

Since you asked me twice here, I'll answer
2(a) you would need to work 180 days to invoke the AC21 safety net.
2(b) From when you quit to 180 day mark, technically it would be grounds for denying your 485. But reality is that the USCIS wouldn't find out unless you get a RFE. Also, related to the RFE, if you applied through your company lawyer, ANY RFE would be risky since RFEs would go to the lawyer and he/she could just say that you no longer work for the sponsoring company - end of story for your case. If you self-filed, then only an EVL would be risky. So if you are planning to do this then first revoke the G28 form and then keep your fingers crossed that you don't get an EVL RFE.

[Kanmani]

@vizcard @qesehmk @Kanmani @SmileBaba @vizcard Thank you guys for answering my question. Appreciate your input. However answer of my 2nd question was not very clear. That was:

2(a): If date moves back, and I apply for I-485 on Aug 1st, then how long do I need to keep working with my GC sponsoring employer (considering date retrogress on Sept 13) ? Because, I want to leave the employer asap and join other company.


2(b): If I leave the employer before 180 days from the day my I-485 is filed but GC has not come. And join similar job with other employer on H1. And my GC sponsorping employer has not withdrawn my I-140. In such situation, would I have to re-start PERM and another I-140 filing from new employer?

1. 180 days
2. You are not protected under AC21 unless you wait for 180 days to change jobs. If you have an agreement with your sponsor (employer) to join them back upon receiving your GC, then you don't need to restart the GC process.

[SmileBaba]

1. 180 days
2. You are not protected under AC21 unless you wait for 180 days to change jobs. If you have an agreement with your sponsor (employer) to join them back upon receiving your GC, then you don't need to restart the GC process.

Kanmani, I do not agree with you on point # 2 based on information provided by yourself.
http://www.qesehmk.org/forums/showth...highlight=ac21 (Post # 43)

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]

Smile
I think those are 2 different points. But Kanmani is correct in both cases.
What kanmani is saying is - for one to avail AC21 180 days wait is absolutely necessary. However, to avail AC21 one doesn't have to be working for the sponsor.

In other words - one can leave sponsor after 180 days without the risk of abandoning GC application.
However if you leave sponsor prior to 180 days - it can be seen as abandoning GC application.

In the latter case - you can certainly appeal if there is an intent to join the sponsor post GC approval.

Kanmani, I do not agree with you on point # 2 based on information provided by yourself.
http://www.qesehmk.org/forums/showth...highlight=ac21 (Post # 43)

[primus]

Smile
I think those are 2 different points. But Kanmani is correct in both cases.
What kanmani is saying is - for one to avail AC21 180 days wait is absolutely necessary. However, to avail AC21 one doesn't have to be working for the sponsor.

In other words - one can leave sponsor after 180 days without the risk of abandoning GC application.
However if you leave sponsor prior to 180 days - it can be seen as abandoning GC application.

In the latter case - you can certainly appeal if there is an intent to join the sponsor post GC approval.

@Qesehmk and @kanmani I have been talking about situation, where I don't leave the job myself, but company lay me off because of company's financial issue. But they don't withdraw my GC application. Suppose that happens 90 days after I-485 application. And I join other employer with similar job. So will I be covered by AC21 once 180 days is completed (while 2nd 90 days I spent with new employer)?

I hope my question is not confusing

[qesehmk]

@Qesehmk and @kanmani I have been talking about situation, where I don't leave the job myself, but company lay me off because of company's financial issue. But they don't withdraw my GC application. Suppose that happens 90 days after I-485 application. And I join other employer with similar job. So will I be covered by AC21 once 180 days is completed (while 2nd 90 days I spent with new employer)?

I hope my question is not confusing

Primus - if you employer is cooperating you then AC21 is a moot point. AC21 is required when a candidate fears that the underlying GC sponsorship is lost. In your case if that sponsorship is going to continue then I don't see any problems. But lets wait until Kanmani confirms it.

[seattlet]

my 2 cents. use the advice in this forum along with getting a good lawyer. (of course if the sponsoring employer is ready to give an Employment letter for future employment this might not be necessary. But that also entails that they have proof to show they are financially strong to have paid your wages from the day they filed PERM. (If the company is a small organization as per USCIS. If it is fairly large one > 100 m revenue, this might not matter).

I have read on forums where immigration lawyers have successfully defended a 485 application even though the employee lost the job 3 or 4 months after filing 485 (before 180 days had lapsed) and subsequently USCIS sent notice of intent to deny (since employer withdrew 140/485). While I dont want to advertise for those lawyers, they are famous ones, so you can google it yourself.
Sometimes you can get lucky

[primus]

my 2 cents. use the advice in this forum along with getting a good lawyer. (of course if the sponsoring employer is ready to give an Employment letter for future employment this might not be necessary. But that also entails that they have proof to show they are financially strong to have paid your wages from the day they filed PERM. (If the company is a small organization as per USCIS. If it is fairly large one > 100 m revenue, this might not matter).

I have read on forums where immigration lawyers have successfully defended a 485 application even though the employee lost the job 3 or 4 months after filing 485 (before 180 days had lapsed) and subsequently USCIS sent notice of intent to deny (since employer withdrew 140/485). While I dont want to advertise for those lawyers, they are famous ones, so you can google it yourself.
Sometimes you can get lucky

What about if company itself gets closed down before 180 days completed since I-485 filing ?

What about if company itself gets closed down after 180 days completed since I-485 filing ?

[Kanmani]

Kanmani,

That is not true, one can travel after filing 485 on a valid non-immigrant VISA.

But it is strongly recommended to come back for fingerprints with out trying to reschedule.

This is based on personal experience.

Veni Thank you!

You are correct and that is what I ultimately wanted to convey.

Without rescheduling the FP appointments, missing FP would end up in a denial.

[Kanmani]

Kanmani, I do not agree with you on point # 2 based on information provided by yourself.
http://www.qesehmk.org/forums/showth...highlight=ac21 (Post # 43)

Smilebaba,

Q has already answered on my behalf, Both are correct. Ac21 is not straightforward, always works on interpretation at available situations.

Find my personal note at the end of my previous post you quoted, I made the comment that way because by accepting the job offer and proceeding with the GC process , there should be an intention to join the employer at some point of time. Availing the said clause would not be that easy if the employer has objections.

General rule is

If you are employed with the Sponsor at the time of filing I-485, wait for 180 days to change jobs, leaving the sponsor for ever.

If you are employed with the Sponsor at the time of filing I-485, If you change jobs before 180 days, you are not covered by AC21 portability to leave the sponsor for ever. It is assumed that you may join the sponsor as per EVL attached to the I-485( even in the case of no RFE)

[Spectator]

What about if company itself gets closed down before 180 days completed since I-485 filing ?

What about if company itself gets closed down after 180 days completed since I-485 filing ?

You are asking questions best answered by an Immigration lawyer who is very familiar with the issues.

Leaving an Employer before the 180 days has completed is not grounds for denial. That is made very clear in the AC21 Memo.

Question 10. Should service centers or district offices deny portability cases on the sole basis that the alien has left his or her employment with the I-140 petitioner prior to the
I-485 application pending for 180 days?

Answer: No. The basis for adjustment is not actual (current) employment but prospective employment. Since there is no requirement that the alien have ever been employed by the petitioner
while the I-140 and/or I-485 was pending, the fact that an alien left the I-140 petitioner before the I-485 has been pending 180 days will not necessarily render the alien ineligible to port. However, in all cases an offer of employment must have been bona fide. This means that, as of the time the I-140 was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.

That answer doesn't clearly address the situation where the job offer could not have been valid for the 180 days required for AC21 I-140 portability to become effective.

In my mind, an essential precondition for AC21 I-140 portability after 180 days is that the I-485 would have been approvable for the full 180 days had an adjudication taken place during that time. Otherwise, it makes a nonsense of having the 180 day requirement at all.

If the original sponsoring Employer ceased trading before the 180 days had expired, then clearly had the case been adjudicated within 180 days it would not have been approvable, since the job approved in the I-140 petition would have ceased to exist.

Further, if the Employer goes out of business, under 8 C.F.R. §205.1(a)(3)(iii)(D) it is grounds for automatic revocation of the I-140 petition. That would also leave the applicant without the priority date from the approved I-140.

Sec. 205.1 Automatic revocation.

(a) Reasons for automatic revocation. The approval of a petition or self-petition made under section 204 of the Act and in accordance with part 204 of this chapter is revoked as of the date of approval:

(3) If any of the following circumstances occur before the beneficiary's or self-petitioner's journey to the United States commences or, if the beneficiary or self-petitioner is an applicant for adjustment of status to that of a permanent resident, before the decision on his or her adjustment application becomes final:

(iii) Petitions under section 203(b), other than special immigrant juvenile petitions .

(D) Upon termination of the employer's business in an employment-based preference case under section 203(b)(1)(B) , 203(b)(1)(C) , 203(b)(2) , or 203(b)(3) of the Act.

At the back of my mind, I do remember a case where USCIS argued this point, but I do not have a copy of that case and it is a rather dim memory that I do not wish to rely on.

Having said that, unless USCIS have some reason to look at the case very closely, the fact that the original employer ceased business before the 180 days were up is unlikely to come to light.

Others may differ in their opinion.

I'll repeat - if this is a potential scenario for you, I strongly suggest you talk to an Immigration lawyer who:

a) Is entirely independent of your employer.

b) Has a very good knowledge (and preferably experience) of this area and situation.

I think these sort of complicated scenarios are outside the purview of any forum expertise.

Good luck.

[bandoayan]

This was my scenario with timelines when I was laid off before 180 days from filing I485.
Priority date - 8/5/2008 (EB2I)
I485 Receipt date - 2/6/2012
Layoff announcement date - 2/27/2012
Last day with sponsoring employer - 4/30/2012 (84 days after I485 Receipt date)
RFE Issue date - 5/2/2012 ( RFE asked for EVL, not sure what triggered the RFE)
Last date for RFE Response (87 days from issue) - 6/28/2012(Saturday), which was about 8 days before 180 days from I485 Receipt.
RFE Response Receipt date with USCIS - 6/27/2012, which was 173 days from filing I485.
Case Pre-adjudicated - October 2012 (Confirmed by level 2 officer)
Got EAD AP renewed in January 2013 for 2 years
My sponsoring employer ( Big 5 consulting company) assured me that they would not revoke I140, which, in fact, saved my I485.

When I received the RFE, I thought that my I485 will definitely be rejected because I have to invoke AC21 on 173rd day and AC21 is not applicable before 180 days. My new attorney (one of the most renowned in this area) filed AC21 with EVL from my new employer. He also assured me that it was very unlikely that USCIS will adjudicate a case within 7 days when priority date was not current and that was what happened, they actually pre-adjudicated my case after about 2.5 months from receipt of RFE response.

Since my future was at stake I read all the Aytes memos related to my case line by line several times. Here is my opinion on the issue:

1) You are not required to work for the sponsoring employer even for a single day before you get the GC. However you should have had an intention to join the sponsoring employer after getting GC while you filed the I485 and your employer should have had the intention to hire you, again this was on the day of filing I485. In my case both I and my employer had the intention. Even my employer paid for all lawyer fees and I485 filing charges.

2) I140 should not be withdrawn within 180 days from filing I485 and off course the new job should be same or similar.

3) If there is an RFE for EVL with last day of response before 180 days, as it happened in my case, USCIS may reject I485. If some how the petition survives 180 days and the above condition is met, USCIS cannot reject I485 because AC21 protects you.

[primus]

Wow your case sounds very adventurous and you were lucky too at the end

This was my scenario with timelines when I was laid off before 180 days from filing I485.
My new attorney (one of the most renowned in this area) filed AC21 with EVL from my new employer.

Why you sent new employer's EVL ? RFE requires EVL from sponsoring employer, isn't it?

[MATT2012]

As we are discussing AC-21 provisions and 180 day requirements. This article may help. http://www.morganlewis.com/pubs/Unta...IB_15jan07.pdf

From the article:
Departure From a Petitioning Employer
Grounding themselves in the familiar axiom that employment in the immigrant employment-based scheme refers to a offer of prospective employment
that the beneficiary will take up when he or she becomes a lawful permanent resident at some point in the future, the Memos make it clear that USCIS
officers may not deny an adjustment-portability request on the basis that the I-140 beneficiary and adjustment-of-status applicant has left the employment
of the I-140 petitioner before the relevant adjustmentof-status application has been pending for 180 days.Indeed, the Memos recognize that the fact that the employment required to support an I-140 petition and adjustment-of-status application is prospective means that such a beneficiary need never have been
employed by the petitioner. The common misconception that an adjustment applicant must remain employed by an I-140 petitioner for at least 180 days in order to benefit from adjustment portability is thus dispelled.

You may also find interesting Q&A here: http://www.jackson-hertogs.com/jh/80542.pdf

My thoughts: it is a high risk game to quit the employer before 180 days, though not impossible. The risk is slightly lower if I-140 is approved before the resignation or layoff. As many suggested here, a good attorney is required and some appetite for risk taking. Good luck.

Spec, I am not sure whether you were looking for "Matter of AL-Wazaan", if not ignore. http://www.justice.gov/eoir/vll/intdec/vol25/3699.pdf