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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 06-21-2008, 03:05 PM
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Default laid off, I-140 revoke, full time to consulting,

I was laid off last week. Company said they will revoke H1 and I-140 after 60 days. Reason they are saying that they will revoke I-140 is because the I-140 is based on position. And because the position is not there any more they will revoke the underlying I-140. This will cause my I-485 to get rejected.My 180 days are over and I am in my 8th year extension. I tried to convince my company that the GC process is based on future position and it does not do them any harm to not revoke it. But they and their lawyers are arguing that the company does not want to take any liability and any chances for any future in case they dont revoke I-140 and it comes back to haunt them in anyway. And guess who their lawyers are, Fragomen. I want to try to stay on H1 as much as possible knowing that I will receive either NOID or a rejection of my I485 after my I-140 has been withdrawn. Whether I receive NOID or a direct rejection will depend on knowledge of IO.In any case I will have to fight it and make sure I am able to reopen it using MTR through a good lawyer. There are few options I am thinking.

1) Enter into consulting business through a good established consultant who can give me the AC21 letters. I intend to stay in same field of occupation as described in my labor but I will be working for a consultancy rather than full time. This way I can try to maintain my h1 as I will get a time to fight for MTR in case my I-485 gets rejected. But I am not sure if switching to consultanting from full-time is practical both from AC21 as well as career perspective?

2) find a full-time new job within 60 days and either xfer H1 OR use EAD to switch. File AC21 and wait for my fate if I get NOID or rejection. I have heard that many times even after submitting proper AC21 docs, people get RFE or NOID. This is discussed in murthy website? Is this a better option than coming in consultancy? The only drawback of this is that if I get laid off from here I will not be able to stay on H1 and will have to switch to EAD.


Can anyone suggest any other options and also good lawyers who have experience in AC21 and success in MTR cases.

Any inputs will be greatly appreciated. I am little upset but trying not to lose my mind.

Thanks.
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  #2 (permalink)  
Old 06-21-2008, 03:42 PM
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Originally Posted by saileshdude View Post
I was laid off last week. Company said they will revoke H1 and I-140 after 60 days. Reason they are saying that they will revoke I-140 is because the I-140 is based on position. And because the position is not there any more they will revoke the underlying I-140. This will cause my I-485 to get rejected.My 180 days are over and I am in my 8th year extension. I tried to convince my company that the GC process is based on future position and it does not do them any harm to not revoke it. But they and their lawyers are arguing that the company does not want to take any liability and any chances for any future in case they dont revoke I-140 and it comes back to haunt them in anyway. And guess who their lawyers are, Fragomen. I want to try to stay on H1 as much as possible knowing that I will receive either NOID or a rejection of my I485 after my I-140 has been withdrawn. Whether I receive NOID or a direct rejection will depend on knowledge of IO.In any case I will have to fight it and make sure I am able to reopen it using MTR through a good lawyer. There are few options I am thinking.
Anyone who quits at the 485 stage ought to be prepared for the possibility of 140 revocation. The reason is, if they do not revoke it, CIS assumes the position will be available to the candidate after he gets his GC. So when they calculate ability to pay for future applications from the company, these dangling 140s will be counted too, which can be a problem for companies with not too much revenue.

Quote:
1) Enter into consulting business through a good established consultant who can give me the AC21 letters. I intend to stay in same field of occupation as described in my labor but I will be working for a consultancy rather than full time. This way I can try to maintain my h1 as I will get a time to fight for MTR in case my I-485 gets rejected. But I am not sure if switching to consultanting from full-time is practical both from AC21 as well as career perspective?
There is no such thing as an AC21 letter. You just send a copy of the offer letter from the new employer and if CIS has questions, they will send you an RFE.

You do not need H1 to use MTR.

Quote:
2) find a full-time new job within 60 days and either xfer H1 OR use EAD to switch. File AC21 and wait for my fate if I get NOID or rejection. I have heard that many times even after submitting proper AC21 docs, people get RFE or NOID. This is discussed in murthy website? Is this a better option than coming in consultancy? The only drawback of this is that if I get laid off from here I will not be able to stay on H1 and will have to switch to EAD.
Your H1 is all , but useless after 180 days of 485 filing. The reason why the job change update you send to CIS may not work is because as there is no specific form attached to it, it is treated as unsolicited mail and cast aside. So it is important to keep evidence that you did send them an update.

There is nothing to be upset about. Just change your job, send a copy of the offer letter to CIS and you are done. It is no longer necessry to maintain your H-1 as there is no benefit you get out of it.
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  #3 (permalink)  
Old 06-21-2008, 03:58 PM
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Originally Posted by kaisersose View Post
Anyone who quits at the 485 stage ought to be prepared for the possibility of 140 revocation. The reason is, if they do not revoke it, CIS assumes the position will be available to the candidate after he gets his GC. So when they calculate ability to pay for future applications from the company, these dangling 140s will be counted too, which can be a problem for companies with not too much revenue.

My company is actually a very large tech corporate, with 30,000 employees worldwide. So I do not think revenue is something that will be an issue.



There is no such thing as an AC21 letter. You just send a copy of the offer letter from the new employer and if CIS has questions, they will send you an RFE.

You do not need H1 to use MTR.



Your H1 is all , but useless after 180 days of 485 filing. The reason why the job change update you send to CIS may not work is because as there is no specific form attached to it, it is treated as unsolicited mail and cast aside. So it is important to keep evidence that you did send them an update.

Why is H1 useless after 180 days?

There is nothing to be upset about. Just change your job, send a copy of the offer letter to CIS and you are done. It is no longer necessry to maintain your H-1 as there is no benefit you get out of it.
I am still trying to understand why H1 would be useless. Because it is a non-immigrant status wouldn't that help in case of I-140 revocation and eventual 485 denial , that would serve as back-up to stay here and fight for MTR in case the 485 denial is in error on their part because they did not send NOID or my file did not get updated with AC21 letter . Don't most of the lawyers recommend that people try to stay on H1 rather than use EAD. In my case I am principal applicant and my wife derivative based on my AOS.
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  #4 (permalink)  
Old 06-21-2008, 04:55 PM
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Originally Posted by saileshdude View Post
I am still trying to understand why H1 would be useless. Because it is a non-immigrant status wouldn't that help in case of I-140 revocation and eventual 485 denial , that would serve as back-up to stay here and fight for MTR in case the 485 denial is in error on their part because they did not send NOID or my file did not get updated with AC21 letter . Don't most of the lawyers recommend that people try to stay on H1 rather than use EAD. In my case I am principal applicant and my wife derivative based on my AOS.
When 485 is denied, you have to file an MTR immediately. Generally within 10 days of filing an MTR, your status changes from denied to pending (as it was befor denial).

As 485 denial does not cancel your EAD, you can still use it for those 2-3 weeks when your 485 status is denied. And so the H-1 is useless.
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  #5 (permalink)  
Old 06-21-2008, 05:25 PM
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Default

Quote:
Originally Posted by kaisersose View Post
When 485 is denied, you have to file an MTR immediately. Generally within 10 days of filing an MTR, your status changes from denied to pending (as it was befor denial).

As 485 denial does not cancel your EAD, you can still use it for those 2-3 weeks when your 485 status is denied. And so the H-1 is useless.
Thanks. So why do the lawyers recommend to stay on H1 rather than use EAD. I also saw lot of posts in these forums where people discuss of trying to stay on H1 rather than use EAD. ?
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Old 06-21-2008, 07:42 PM
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Quote:
Originally Posted by saileshdude View Post
I was laid off last week. Company said they will revoke H1 and I-140 after 60 days. Reason they are saying that they will revoke I-140 is because the I-140 is based on position. And because the position is not there any more they will revoke the underlying I-140. This will cause my I-485 to get rejected.My 180 days are over and I am in my 8th year extension. I tried to convince my company that the GC process is based on future position and it does not do them any harm to not revoke it. But they and their lawyers are arguing that the company does not want to take any liability and any chances for any future in case they dont revoke I-140 and it comes back to haunt them in anyway. And guess who their lawyers are, Fragomen. I want to try to stay on H1 as much as possible knowing that I will receive either NOID or a rejection of my I485 after my I-140 has been withdrawn. Whether I receive NOID or a direct rejection will depend on knowledge of IO.In any case I will have to fight it and make sure I am able to reopen it using MTR through a good lawyer. There are few options I am thinking.

1) Enter into consulting business through a good established consultant who can give me the AC21 letters. I intend to stay in same field of occupation as described in my labor but I will be working for a consultancy rather than full time. This way I can try to maintain my h1 as I will get a time to fight for MTR in case my I-485 gets rejected. But I am not sure if switching to consultanting from full-time is practical both from AC21 as well as career perspective?

2) find a full-time new job within 60 days and either xfer H1 OR use EAD to switch. File AC21 and wait for my fate if I get NOID or rejection. I have heard that many times even after submitting proper AC21 docs, people get RFE or NOID. This is discussed in murthy website? Is this a better option than coming in consultancy? The only drawback of this is that if I get laid off from here I will not be able to stay on H1 and will have to switch to EAD.


Can anyone suggest any other options and also good lawyers who have experience in AC21 and success in MTR cases.

Any inputs will be greatly appreciated. I am little upset but trying not to lose my mind.

Thanks.
140 approved or just applied? If its approved then it revoking would not be a problem. Just send USCIS new employment letter.
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  #7 (permalink)  
Old 06-21-2008, 10:21 PM
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Default

I had the same question. According to discussion with my lawyer, the option to stay on H1 is a personal one. In any case you are using AC21 whether you get a new H1 for another co. or use your EAD. The advantage of being on H1 is you are still in status and working even if your 485 petition is turned down and you can apply to extend H1 (of course depending on your situation, labor filed or not, how much time left etc. etc.). But if you are on EAD you might yourself in a jam if your EAD renewal is turned down or delayed. You could be out of status. Also, if you want to go back to H1 from EAD you are back in the H1 queue (65k or 20k masters). You cannot transfer to H1 from a EAD job anymore without an approval thru a brand new filing.
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Old 06-21-2008, 10:58 PM
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Originally Posted by deba View Post
I had the same question. According to discussion with my lawyer, the option to stay on H1 is a personal one. In any case you are using AC21 whether you get a new H1 for another co. or use your EAD. The advantage of being on H1 is you are still in status and working even if your 485 petition is turned down and you can apply to extend H1 (of course depending on your situation, labor filed or not, how much time left etc. etc.). But if you are on EAD you might yourself in a jam if your EAD renewal is turned down or delayed. You could be out of status. Also, if you want to go back to H1 from EAD you are back in the H1 queue (65k or 20k masters). You cannot transfer to H1 from a EAD job anymore without an approval thru a brand new filing.
Are you sure about not being able to transfer H1 from EAD? If you have already finished your 6 yrs on h1B, then that is true ... but if you have some years left on H1B, then you could use those years without going through the quota.
__________________
Disclaimer: I am not a legal professional, and hence, do not consider the above information as legal advice/opinion. Please contact a professional lawyer for legal advice.
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  #9 (permalink)  
Old 06-22-2008, 12:24 AM
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Originally Posted by deba View Post
I had the same question. According to discussion with my lawyer, the option to stay on H1 is a personal one. In any case you are using AC21 whether you get a new H1 for another co. or use your EAD. The advantage of being on H1 is you are still in status and working even if your 485 petition is turned down and you can apply to extend H1 (of course depending on your situation, labor filed or not, how much time left etc. etc.). But if you are on EAD you might yourself in a jam if your EAD renewal is turned down or delayed. You could be out of status. Also, if you want to go back to H1 from EAD you are back in the H1 queue (65k or 20k masters). You cannot transfer to H1 from a EAD job anymore without an approval thru a brand new filing.
If your I-485 is turned down then you will not be able to get extensions. Reason is H1 extension past 6 years are based on pending GC. If 485 is turned down then there is not pending GC. In my case my I-140 will be revoked within 60 days so I will need to transfer H1 before that. After it is revoked I will need to restart my labor via new company and have that pending for over a year to be able to get further extensions. Otherwise I will need to use EAD after H1 expires.
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  #10 (permalink)  
Old 06-22-2008, 05:25 AM
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Default laid off, I-140 revoke, full time to consulting, Reply to Thread

SaileshDude,
If you are already aware of all the pros and cons of switching to EAD Vs. Continuing on H1B then why do ask for an advice?
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  #11 (permalink)  
Old 06-22-2008, 12:07 PM
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Default One in never sure

Inspite of all the knowledge available on the internet, most of us do think twice due to the uncertain way the USCIS works.

Shaileshdude just want assurance from other experts..
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Old 06-22-2008, 12:35 PM
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SaileshDude,
If you are already aware of all the pros and cons of switching to EAD Vs. Continuing on H1B then why do ask for an advice?
Well, my questions were more based on the following scenarios , which I am not sure:

1) If I have to get a job within 60 days and still try to stay on H1, then only way I can think of is to enter into consulting rather than full time position. But I am not sure what impact this will have on AOS as my job description was set based on a software involved in product development company. But consulting company would be a little different kind of business. I am not sure if this switch from full to consulting is ok from AC21 perspective?

2) Also , is there any other way I can try to convince my employer not to revoke the I-140? I am not sure why would they want to do this as they are not obligated to do it.
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Old 06-22-2008, 02:01 PM
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I dont see any issue with your case and that the scenario any one expects while using AC21 .

95 % of the cases I-485 will not be denied if you have proper documentation and you have to take that risk .

This is expected with the long drawn GC process incase of a Full Time employment . That's one of the reasons many people will work with desi employers in consulting .... thats the risk and reward you have weigh well before the GC process...

Quote:
Originally Posted by saileshdude View Post
Well, my questions were more based on the following scenarios , which I am not sure:

1) If I have to get a job within 60 days and still try to stay on H1, then only way I can think of is to enter into consulting rather than full time position. But I am not sure what impact this will have on AOS as my job description was set based on a software involved in product development company. But consulting company would be a little different kind of business. I am not sure if this switch from full to consulting is ok from AC21 perspective?

2) Also , is there any other way I can try to convince my employer not to revoke the I-140? I am not sure why would they want to do this as they are not obligated to do it.
Anyone who quits at the 485 stage ought to be prepared for the possibility of 140 revocation. The reason is, if they do not revoke it, CIS assumes the position will be available to the candidate after he gets his GC. So when they calculate ability to pay for future applications from the company, these dangling 140s will be counted too, which can be a problem for companies with not too much revenue.
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