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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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  #1 (permalink)  
Old 04-18-2008, 03:37 PM
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Post 485 pending, switched jobs less than 180 days

Hi Gurus,

Please help me on my case. I am getting conflicting answers regarding my case details.

My priority date is January 16, 2006. I am part of EB3 Phils. I am one of those July 2007 files. I filed my i485 application on July 2, 2007 with an approved i-140 (approved on August 2006).

The thing that complicated my situation is that I had to switch to another job less than 180 days after filing for i1485. I joined a new employer on October 2007. My sponsoring employer however told me that they will not revoke or cancel my i140 given that the company I went to is one of their clients. Until now (April 18, 2008), my i485 is still pending and my i140 is still in approved status. I switched to a new employer using H1B transfer rather than using the approved EAD so that I can stay in a non-immigrant status.

Given that my priority date will be current this coming May 2008, what implications will I have regarding my case given that I have switched to a new employer less than 180 days after filing for my i485 case. By the way, I didn't bother invoking the AC21 clause of informing USCIS that I have switched employers given that I plan to be with them (my sponsoring employer) once my i485 gets approved.

Any insights?

Thanks a lot for your help!
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  #2 (permalink)  
Old 04-18-2008, 03:39 PM
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  #3 (permalink)  
Old 04-18-2008, 03:47 PM
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I think you will fine, there will be an issue only if they process your case within 180 days, but now you crossed 180 days limit
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  #4 (permalink)  
Old 04-18-2008, 04:42 PM
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Originally Posted by eugynco View Post
Hi Gurus,

Please help me on my case. I am getting conflicting answers regarding my case details.

My priority date is January 16, 2006. I am part of EB3 Phils. I am one of those July 2007 files. I filed my i485 application on July 2, 2007 with an approved i-140 (approved on August 2006).

The thing that complicated my situation is that I had to switch to another job less than 180 days after filing for i1485. I joined a new employer on October 2007. My sponsoring employer however told me that they will not revoke or cancel my i140 given that the company I went to is one of their clients. Until now (April 18, 2008), my i485 is still pending and my i140 is still in approved status. I switched to a new employer using H1B transfer rather than using the approved EAD so that I can stay in a non-immigrant status.

Given that my priority date will be current this coming May 2008, what implications will I have regarding my case given that I have switched to a new employer less than 180 days after filing for my i485 case. By the way, I didn't bother invoking the AC21 clause of informing USCIS that I have switched employers given that I plan to be with them (my sponsoring employer) once my i485 gets approved.

Any insights?

Thanks a lot for your help!
The law specifically states that AC-21 kicks in 180 days since I485 is FILED. You can not change jobs before that and count on approval. Now, they are 2 options here. If the USCIS sends a query for a new employment offer letter, you are in trouble. At that time they will figure out you changed jobs before 180 days. The second option is that the USCIS does not send a query and then you I-485 can get approved. However, this is not legally permissible and they can figure out something was wrong when you apply for citizenship. The fact that your company did not cancel you I140 has NOTHING to do with it. Even if your company cancels 140 after 180days since I140 was filed, you are still entitled to your PD established on I140 stage. However, the 180 days after I485 is filed is hard written law and one should be Very careful when changing jobs.
Also, the fact that you changed using H1 does not make any difference.
Good luck.
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  #5 (permalink)  
Old 04-18-2008, 06:09 PM
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Unhappy

thanks guys for your replies.

What makes me wonder is that GC is for future employment right? There is no prerequisite that a person should have worked with the employer before the approval of the i485.

If you look at this link, Question number 2:
http://www.murthy.com/news/n_nuacp1.html

You could see that the important thing is just to have the i140 intact for 180 days after filing of i485. I guess I am doomed now...
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  #6 (permalink)  
Old 04-18-2008, 06:16 PM
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Default Not true!

Please refer to this http://www.murthy.com/news/n_nuacp1.html

You should be fine as long as I-140 is not revoked before 180 days and the I-485 is not adjudicated before 180days. Sending AC21 letter is better, but not necessary at this stage. since your previous employer is cooperating, it is good for future RFE's if any. But if you foresee that things might change with your previous employer, then be prepared to send in AC21 letter.


Quote:
Originally Posted by glus View Post
The law specifically states that AC-21 kicks in 180 days since I485 is FILED. You can not change jobs before that and count on approval. Now, they are 2 options here. If the USCIS sends a query for a new employment offer letter, you are in trouble. At that time they will figure out you changed jobs before 180 days. The second option is that the USCIS does not send a query and then you I-485 can get approved. However, this is not legally permissible and they can figure out something was wrong when you apply for citizenship. The fact that your company did not cancel you I140 has NOTHING to do with it. Even if your company cancels 140 after 180days since I140 was filed, you are still entitled to your PD established on I140 stage. However, the 180 days after I485 is filed is hard written law and one should be Very careful when changing jobs.
Also, the fact that you changed using H1 does not make any difference.
Good luck.
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  #7 (permalink)  
Old 04-18-2008, 07:50 PM
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Originally Posted by glus View Post
The law specifically states that AC-21 kicks in 180 days since I485 is FILED. You can not change jobs before that and count on approval.
not true. You can keep changing jobs, in fact you dont even ever have to work for your sponsoring employer. GC is all for future job.

Quote:
Now, they are 2 options here. If the USCIS sends a query for a new employment offer letter, you are in trouble. At that time they will figure out you changed jobs before 180 days. The second option is that the USCIS does not send a query and then you I-485 can get approved. However, this is not legally permissible and they can figure out something was wrong when you apply for citizenship. The fact that your company did not cancel you I140 has NOTHING to do with it. Even if your company cancels 140 after 180days since I140 was filed, you are still entitled to your PD established on I140 stage. However, the 180 days after I485 is filed is hard written law and one should be Very careful when changing jobs.
Also, the fact that you changed using H1 does not make any difference.
Good luck.
the only thing he needs to worry about, is whether at that 180 day point past his 485 filing, the sponsoring employer had the INTENTION of employing him. Thats good enough. Its nice and clean if you are ALREADY employed, but even if you are not, you can argue this case in your favor since the I-140 was not revoked by the sponsoring employer. The only thing he needs to worry about is the possiblity that USCIS asks about the intention of the sponsorer to employ you and how you can convince them of that... the unrevoked I-140 is one thing. If old employer are good enough to issue you a letter to that effect (essentially an employment-offer letter) thats also good enough.
So hang on and wait to see what USCIS does. You might get through without anything. If they ask for EVL, then you can send from new employer and claim portability since now you are past 180 days.
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  #8 (permalink)  
Old 04-18-2008, 08:44 PM
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Dear Meridiani:

Your logic is correct, but. The but comes when a person at the time of filing I-485 is employed by the sponsoring company. If such a person changes employer BEFORE 180 days have past, there is so called, reasonable suspicion that the future job offer at the original sponsor does not exist any longer. That is why, the USCIS most often requires an updated employment offer letter from the original employer. One is free to change jobs if 181 days have passed with no major concerns and if one's I-140 petition is approved. However, if one changes jobs BEFORE 180 day have passed and does this voluntarily, this CAN cause issues. If one was fired, this is a different story.

In general, AC-21 kicks in only after 180 days have passed. If USCIS finds that one changed jobs before such time, it will ask why, when etc to see if AC-21 could be used. It is true that one can keep changing jobs, yes. But at the time of adjudication, the USCIS will require a job offer letter from the original sponsor, of a new employer if AC-21 was successfully used.

This is a complex issue any many of our members have gone through this. Attorneys ALWAYS advise to wait for 180 days since I-485 is filed before accepting new employment leaving the original sponsor behind.

see this:
http://www.gurfinkel.com/immigration...pr09-2006.html


Recently, the USCIS clarified the circumstances under which an alien is able to change employers under AC-21 without having to start all over again. In order to be able to change employers (or have a new employer "take over" the existing case), not only must the adjustment of status application be pending for 180 days or more, but the original employer's I-140 petition must have previously been approved . An alien would not be able to avail of the portability provisions of AC-21, and would not be able to change employers (or have the new employer "take over" the case) if:
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  #9 (permalink)  
Old 04-18-2008, 09:25 PM
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Question

This is really so confusing. Here's another link from Carl Shusterman. Please look at question 1 and 2:

http://immigration.about.com/library.../aa090903b.htm

In the link, he clearly says that AC21 is possible as long as there is no revocation within the first 6 months of filing for i485.

Is anyone in the same boat as I am? If so, what have you guys done so far?

Thank you.
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  #10 (permalink)  
Old 04-18-2008, 09:47 PM
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Quote:
Originally Posted by eugynco View Post
This is really so confusing. Here's another link from Carl Shusterman. Please look at question 1 and 2:

http://immigration.about.com/library.../aa090903b.htm

In the link, he clearly says that AC21 is possible as long as there is no revocation within the first 6 months of filing for i485.

Is anyone in the same boat as I am? If so, what have you guys done so far?

Thank you.
Your job switch will be known to CIS only if they pick you in the random sweep or something in which case they will ask for as valid offer letter in line with your Labor.

You can product a legitimate letter as you are working somewhere now...so you are all set.

Stop confusing yourself as you are at zero risk.
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  #11 (permalink)  
Old 04-19-2008, 07:31 AM
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Default

Quote:
Originally Posted by glus View Post
Dear Meridiani:

Your logic is correct, but. The but comes when a person at the time of filing I-485 is employed by the sponsoring company. If such a person changes employer BEFORE 180 days have past, there is so called, reasonable suspicion that the future job offer at the original sponsor does not exist any longer. That is why, the USCIS most often requires an updated employment offer letter from the original employer. One is free to change jobs if 181 days have passed with no major concerns and if one's I-140 petition is approved. However, if one changes jobs BEFORE 180 day have passed and does this voluntarily, this CAN cause issues. If one was fired, this is a different story.

In general, AC-21 kicks in only after 180 days have passed. If USCIS finds that one changed jobs before such time, it will ask why, when etc to see if AC-21 could be used. It is true that one can keep changing jobs, yes. But at the time of adjudication, the USCIS will require a job offer letter from the original sponsor, of a new employer if AC-21 was successfully used.

This is a complex issue any many of our members have gone through this. Attorneys ALWAYS advise to wait for 180 days since I-485 is filed before accepting new employment leaving the original sponsor behind.

see this:
http://www.gurfinkel.com/immigration...pr09-2006.html


Recently, the USCIS clarified the circumstances under which an alien is able to change employers under AC-21 without having to start all over again. In order to be able to change employers (or have a new employer "take over" the existing case), not only must the adjustment of status application be pending for 180 days or more, but the original employer's I-140 petition must have previously been approved . An alien would not be able to avail of the portability provisions of AC-21, and would not be able to change employers (or have the new employer "take over" the case) if:
I am not denying the fact that its always better to wait 180 days. I am disputing your statement that, and I quote "You can not change jobs before that and count on approval". That is not true. It might come down to proving the intent of the employer on the 180th day of your filing. However the fact that I-140 was not revoked comes in useful. In OPs case here 180 days have now passed, so its even better. He can claim AC-21 if he gets an RFE at this point.
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  #12 (permalink)  
Old 03-30-2017, 11:17 AM
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Default Please respond if anybody was successful! I am on same boat!

Hi, Can you help me with the update on your case. I am on the same boat. I changed my employer within 180 days after 485 filed.
I was working with my sponsor and filed 485 in Aug 2007. Changed to new employer due to personal reasons and terminated employment with sponsor in Nov 2007...but with mutual agreement, Sponsor continued the process, and got 140 approved. Now after 10 years, my 485 is current and responded to RFE with Supp J with new employer(AC21). My new employer lawyer said its kind of risky, we got to wait and see. I am worried! Please help me with your updates/suggestions.
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  #13 (permalink)  
Old 08-20-2017, 05:39 AM
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Default

Hi Buddy,

I'm in the same situation of you, any updates form your case?

Thank you!!!
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