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AC21 Portability after 180 days of 485 filing AC21 Portability after 180 days of 485 filing. Changing employers without affecting green card process.

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  #16 (permalink)  
Old 07-09-2009, 04:37 PM
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Default Thanks

Good to have this as reference and thanks for pointing out the ability to port to self-employment as part of AC21 portability.

jazz

Quote:
Originally Posted by kshitijnt View Post
http://www.ilw.com/lawyers/immigdail...,0520-ac21.pdf

Here is the link. Your attorney is not the law. Some other attorney might say you can do it.
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  #17 (permalink)  
Old 07-09-2009, 04:38 PM
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Originally Posted by kshitijnt View Post
.....
Set up a LLC company or sole proprietorship and work with an attorney. Keep the paperwork tight and upto date.
....
Setting up company is just the first step for Self-Employment. The key things is to demonstrate that new job is in same/similar classification and company has offered "bonafide" job, not just job on paper.

BTW, it is not necessary to have LLC. The corporate structure could be S-Corp or C-Corp also.


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  #18 (permalink)  
Old 07-09-2009, 04:40 PM
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Originally Posted by browncow View Post
Yes, that is understood.
The question is if one has worked as a contractor and got a employment RFE and the company provided a letter stating a full time consultant job, has USCIS rejected such a response?
I have not heard of any rejection. But, the fact that you're receving 1099-MISC means that you're not full time. In fact, you're not even an employee for the company. If you receive an RFE, I assume you'll need to produce paystubs (which the OP don't have). In addition, you won't even get 1099-MISC until the year end. In short, no proof to overturn RFE.

IF the company can produce such a letter, technically it is a fraud since the OP is NOT a full-time employee. Replying to RFE with no proof and fraud intend won't fly.

Fittan
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  #19 (permalink)  
Old 07-09-2009, 04:41 PM
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Originally Posted by kshitijnt View Post
Getting a letter is not a big deal. What if I am a full time consultant in that company?
consultant does not consitute employer-employee relationship. This WILL NOT satisfy the full time permanant employment.
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  #20 (permalink)  
Old 07-09-2009, 04:41 PM
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Default How about contract on W2

I am in a similar position but working on 3 months contract through a consulting company on w2. It is similar to my 485 job details, but it is a short term project.

Would I get an RFE if I work on contract on W2?
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  #21 (permalink)  
Old 07-09-2009, 04:45 PM
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Originally Posted by Ramba View Post
consultant does not consitute employer-employee relationship. This WILL NOT satisfy the full time permanant employment.
Oh yeah. All big time consulting companies must lay off foreign workers then, myself included. My perm was filed as IT programmer, IT consultants job code. So am I not a full time employee of consulting company? Is USCIS fool to approve my I140? Not once but twice!
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  #22 (permalink)  
Old 07-09-2009, 04:48 PM
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Originally Posted by getgc2008 View Post
I am in a similar position but working on 3 months contract through a consulting company on w2. It is similar to my 485 job details, but it is a short term project.

Would I get an RFE if I work on contract on W2?
In my personal opinion, you should look out for permanent offers. I tend to prefer 1099 contracts as opposed to W-2 because 1099s tend to make stronger case for self employment.
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  #23 (permalink)  
Old 07-09-2009, 04:54 PM
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Default Addl Qs

Thanks so much everyone for your replies. I am planning to go for this job, I guess it will be better to be self-employed rather than unemployed.

However, a few follow up questions.

1. I realize on 1099 I will not have any pay stubs or offer letter (as pointed by someone). How can I respond to a Employment Verification RFE? What documentory proof will I need to answer the RFE?

2. If I can get an offer letter for 'Contract to Hire' will that be an appropriate response to any potential EVL RFE? Will it be ok if the full time joing date is say 3 months from now? First 6 months on 1099 and then full time hire?

3. Is it better to go corp-to-corp through another vendor instead of 1099? That way I can have pay stubs/offer letter through a vendor company which will produce my pay stubs (even though I will lose about 20% of my billing rate)?

Just an additional detail, my job duties are going to be exactly same as what was approved on my labor.


Your help is highly appreciated.

Thanks!!

- S
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  #24 (permalink)  
Old 07-09-2009, 04:55 PM
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Default payslips not needed

Quote:
Originally Posted by fittan View Post
I have not heard of any rejection. But, the fact that you're receving 1099-MISC means that you're not full time. In fact, you're not even an employee for the company. If you receive an RFE, I assume you'll need to produce paystubs (which the OP don't have). In addition, you won't even get 1099-MISC until the year end. In short, no proof to overturn RFE.

IF the company can produce such a letter, technically it is a fraud since the OP is NOT a full-time employee. Replying to RFE with no proof and fraud intend won't fly.

Fittan
payslips are not "required" only thing needed is a proof that you have been offered a job that meets all those conditions we all know about. technically, you dont even need to be working when you get RFE... ac21 memo allows self employment very clearly and distinctly. however, it also allows for two things: 1) it allows the IO to ask whatever questions they want to ensure that the job is legitimate and not a fraud. 2) it allows the IO to investigate if there was truly an intention between the beneficiary and the petitioner who applied for I-140 at the time of filing for I-140 AND at the time of filing I-485 (if not con-current). Fortunately, the IO is limited to investigating all this only by means of RFE (i.e. he cannot send the FBI or CIA behind you).

the problem for you and for me is that all this shit has not been proven in court... will you be the first person to take this risk? if you respond to RFE and then they deny your 485 and then you fight a case to overturn that denial, then it will set a precedent in case law that can be applied to all of us... so, please do it and let us know! :-)

i incorporated last year but did not do any business... instead i took a full time job with a well known company... I am shutting down my inc this year... i have already responded to an RFE with an EVL from my employer... i wish they could clarify on this policy... as per AC21 memo, they dont have any problem with self employment...
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  #25 (permalink)  
Old 07-09-2009, 04:57 PM
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Quote:
Originally Posted by desi3933 View Post
Setting up company is just the first step for Self-Employment. The key things is to demonstrate that new job is in same/similar classification and company has offered "bonafide" job, not just job on paper.

BTW, it is not necessary to have LLC. The corporate structure could be S-Corp or C-Corp also.


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In this enforcement climate, self-employment is risky too. The memo is not a binding rule. Having said that, even if any one chose to self employment, they must have very proper documents including long-term contract agreement with few clients, that explanis the service you provide shold be in-line with orginal I-140 job duties. In current H1B denial rate becuse of client letters RFE, the self employed AC21 cases shold be more prepared, in case of RFE.
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  #26 (permalink)  
Old 07-09-2009, 05:17 PM
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Quote:
Originally Posted by kshitijnt View Post
Oh yeah. All big time consulting companies must lay off foreign workers then, myself included. My perm was filed as IT programmer, IT consultants job code. So am I not a full time employee of consulting company? Is USCIS fool to approve my I140? Not once but twice!
Two things
1. Consultant can be part of job title and/or duties. Key thing is that job must be permanent and full-time.
2. PERM can only be filed for job that are permanent and full time.

.
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  #27 (permalink)  
Old 07-09-2009, 05:28 PM
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Quote:
Originally Posted by desi3933 View Post
Two things
1. Consultant can be part of job title and/or duties. Key thing is that job must be permanent and full-time.
2. PERM can only be filed for job that are permanent and full time.

.
I know that , I had a rebuttal for consultant does not constitute employer employee relationship argument. It does not for the end client but does for the agency or consulting co.
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  #28 (permalink)  
Old 07-09-2009, 05:34 PM
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Quote:
Originally Posted by desi3933 View Post
Two things
1. Consultant can be part of job title and/or duties. Key thing is that job must be permanent and full-time.
2. PERM can only be filed for job that are permanent and full time.

.
I have talked to few people who do self employment. This is what they have to say.

"As long as the job duties are same or similar, it is fine",
"You must be a W2 employee of your firm"
"The key is constant business and income - which can be proved via paystubs and/or contracts - in case it is requested for"

I am also trying to do some research on this.

A lot of people do go for self employment so no need to be scared as long as the employment is legitimate.
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  #29 (permalink)  
Old 07-09-2009, 05:40 PM
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Originally Posted by chanduv23 View Post
.....
A lot of people do go for self employment so no need to be scared as long as the employment is legitimate.
Thanks Chandu.

This one line summaries well what is needed for Self-Employment.


.
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  #30 (permalink)  
Old 07-09-2009, 06:22 PM
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supreet will become famous soon enough supreet will become famous soon enough
Default

Quote:
Originally Posted by desi3933 View Post
Thanks Chandu.

This one line summaries well what is needed for Self-Employment.


.
This offer is from a big consulting/outsourcing company. But the question is, what documentary proof do I need to prove that the employment is legitimate. Specially since I will not have an offer letter/employment letter.

Thanks!!
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