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-   AC21 Portability after 180 days of 485 filing (
-   -   IV spotlight Topic Series: Discuss issues with AC21 after applying for 485 (

javadeveloper 09-26-2007 02:32 PM

Receipt Date or Notice Date??
We can change job after 180 days after receipt Date or Notice Date??

abq_gc 09-28-2007 03:42 PM

This is what my lawyer says about EAD card.

"" If you want to use your EAD card, you should wait 180 days after the USCIS
received your I-485 application. You do not need to return to your sponsoring
employer if you use your EAD card after the 180 day waiting period. ""

Any comments ?



iam4u4ever 09-28-2007 05:27 PM


Originally Posted by indyanguy (Post 173650)
By Self employment, do you mean working on 1099 or by starting a business and working for it?

by starting a business and working for it ?


iam4u4ever 09-28-2007 05:30 PM

by starting a business and working for it ?

And what happens if somebody already has an existing profit making business and wants to work for it ?

gc_chahiye 09-28-2007 05:33 PM


Originally Posted by HV000 (Post 173662)
If Labor Certification and I-140 Approval Notices are a property of the Employer, how the "Beneficiary" is supposed to invoke 'AC-21' for changing jobs in the future without having the approval notices? - My employer has a policy of NOT giving out approval notices of LC and I-140.

for AC-21 (if you choose to inform USCIS: its recommended, but some people dont do it) you only need to provide a letter explaining you are porting, and include a copy of your new employers offer letter. You provide receipt number of your 485. I-140/LC copies not needed. If you are trying to port after 6 years of H1, and need to extend H1 with new employer, thats when you need copy of I-140 approval notice or LC. If your employer does not provide it, I think you will be forced to use AC-21 with EAD in that case.

JazzByTheBay 09-28-2007 05:36 PM

Makes sense...
Given the number of questions and concerns IV members have about AC21 in general and "what after EAD/AP", it makes sense to coordinate with USCIS (and lawmakers if required) on this and get some favorable responses that allay everyone's concerns.

If EAD+AP are like a "provisional GC", USCIS should perhaps not delve too much into the job description of work done after the 180 days past AOS filing, imo. Just as in the case of GCs, the bar of intent to be employed in that job is met by working for that employer for 90-180 days (the latter to be on the safe side). The only reason this is such a huge issue is because of the unreasonable waiting time induced on the GC process due to retrogression.

As a result, folks from retrogression-affected countries suffer from these anxities, whereas those from unaffected countries get their GCs, and are free birds after the 90-180 day period.

It's unreasonable to expect folks from retrogressed countries to be employed in the same position, or to otherwise limit their options by imposing restrictions of new job being the same job description as the one on the approved labor cert.



Originally Posted by Ramba (Post 59102)
First there is not enough AC21 cases to give feed back how their 485s were handled (approved/detail of RFE/denied) due to job change. Becase, almost all guys who used ac21 still in waiting game due to retrogression.

The main thing what I see here is, USCIS has not yet published the final regulation to interpret AC21 act, even after 7 years of passing AC21 act. They are issuing internal field office memo. These memos are non-binding. In other words, one cannot firmly relay on memos or challange the USCIS decision on AC21 portability according to these memos.

However, sofar, these memos are very favorable to workers, including allowing self-employment, one can port even before 140 approval ect...However, USCIS were cautioning in each memos, that the final regulation may be restrictive than memos. If they took restrictive position in final regulation, it will be a huge problem for most peoples, as they might have violated the final regulation.

Another issue is, definition of "same or similar occupational classification". This is going to be very subjective based on how uscis adjudicator going to compare old and new jobs. The memo says by comparing job duties both old and new jobs and based on SOC or ONET code of old and new job they have to decide both jobs are same or similar. As there is no clear regulation it is big issue to go howmuch level of similarity between jobs. For example one guy may think "database administrator" and "network administrator" are similar job to port. The USCIS may think it may not. It is not quantified.

I feel IV should advocate on liberal/quantifyable defintion for similar jobs in AC21 interpretation. For example, all computer professional jobs should be considered as similar jobs as well as all engineering jobs should be considered similar to port. For example mining engineer can port to chemical engineer job etc...

Also, if any one port to self employment in similar job, there is no much information available wheter one should open a company in his/her name or not (by just working in 1099 etc.. for multiple positions). This needs to have a flexible option for workers, like one can work in 1099 w/o opening a bussiness.

Also, IV should advocate on not to have any restrictive interpretation in final regulation.

iam4u4ever 09-29-2007 05:31 PM


Originally Posted by indyanguy (Post 173650)
By Self employment, do you mean working on 1099 or by starting a business and working for it?

By self employment I mean Starting a business of my own and working for it. ?

Also what if ( a big if ) somebody has an already existing profit making business and wants to work for it ?


vikki76 09-29-2007 05:48 PM

Consulting on EAD
For variety of reasons, I wish to explore option of consulting instead of permanent corporate job. Can I do consulting in my own name directly or do I need to be associated with some company?
Green card (EB-2, Nov 29,2004 PD) application is in my name. I have filed 485 this July and expecting my EAD any time. I will be invoking AC21 after 6 months.
But need answer to this question
A. Consult on own?
B. Go through a consulting company?

I prefer option A.

gc2 09-29-2007 06:28 PM

more info
here's what i found browsing the net. hope this helps. not sure if a newer memo has been released,0520-ac21.pdf

vikki76 09-30-2007 12:01 AM

This is what I found on this PDF
Question 8. Can an alien port to self-employment under INA 204(j)?
Answer: Yes, as long as the requirements are met. First, the key is whether the employment is in a "same or similar" occupational classification as the job for which the original I-140 petition was filed. Second, it may be appropriate to

vikki76 09-30-2007 12:30 AM

more details
Interpretations from website
6. Porting to Self-Employment

USCIS has surprisingly taken the position in the memo that foreign nationals may port to self-employment. However, there may be difficult issues of proof involved: the foreign national will have to prove the legitimacy of the self-employment; and will have to prove that the I-140 petitioner intended to employ him or her upon the filing of the I-140 petition and at the time of filing the I-485 application (if not filed concurrently). The foreign national must also have intended to undertake the employment upon adjustment. The most difficult proof issue will be showing that the I-140 petitioner intended to employ the beneficiary upon I-140 and I-485 filing. This is difficult because once the foreign national ports, the I-140 petitioner may be less than willing to provide evidence of its former intent. However, the memo also states that the I-140 petition and supporting documents are prima facie evidence of the employer's intent. But in appropriate cases, additional evidence will be necessary. The memo does not say what those "appropriate cases" will be. If additional evidence is required from the I-140 petitioner, it will likely be very difficult to obtain.

7. Timing of New Employment Offer

A foreign national cannot still be looking for "same or similar" employment at the time the I-485 is being adjudicated. This indicates that it is acceptable for some time to lapse between leaving employment with the I-140 petitioner, and accepting a new job offer in a "same or similar position." However, if the I-485 is adjudicated before a new employment offer is procured, the foreign national is out of luck.

diptam 09-30-2007 12:46 AM

LC ,140 actually not Required....
Your employer do NOT have to give LC or Original 140 to you for invoking AC21. If you have 485/AOS receipt ( which is your personal property) and you got a copy of 140 receipt ( if not approved) / copy of approval notice and that 485 shows more than 180 days from RECEIPT DATE you are good to switch Jobs.

Just keep in touch with Attorney in case if any RFE comes - so that he contacts you now instead of your previous employer. If you are a self-filer or have hired your own Lawyer even you dont have this headache.

When changing Jobs - be responsible on your own , so that you can respond to the RFE satisfactorily. Also make sure you get a letter from new employer that they want to recruit you on a permanent basis quoting your Salary and Job description.


Originally Posted by HV000 (Post 173662)
If Labor Certification and I-140 Approval Notices are a property of the Employer, how the "Beneficiary" is supposed to invoke 'AC-21' for changing jobs in the future without having the approval notices? - My employer has a policy of NOT giving out approval notices of LC and I-140.

srini1976 09-30-2007 01:15 AM

Bench time allowed?
What happens when 485 is pending for more than 180 days and a person already used EAD for his current JOB(because of the policy of the Employer saying that: Once they apply for EAD employee needs to use EAD and company will not extend H1B anymore). Eventually employee will use EAD.

The he loses his JOB(with Current Emlpoyer who is the sponsorer of 140 & 485)? And say he remains without similar JOB for example 2-4 weeks and then finds a JOB with similar JOB description? Does he still remain on Adjustment of Status? Does he needs to be continuously employed till his 485 is adjudicated?

Please provide some input. All your opinions would help many folks!

Maverick1 09-30-2007 02:44 AM

You might need additional documentation only in cases of RFE. In most cases there are no RFEs. I know a friend of mine was job less for a year and changed 2 jobs under AC21(with different salary ranges ) after applying 485. Never informed USCIS (I guess it is not mandatory). He got his GC recently. He probably would have faced difficulty if there were any RFEs.

One should be okay as long as the following are met :

1) 180 days sice I485 RD
2) Approved I140 (Some say approvable , but safe it is already approved)
3) New job is substantially similar.

Again it was not clearly defined what is substantially similar and I don't think there is any hard and fast rule about the salary changes. That leaves a lot to the discretion of the adjudicating officer. That is why it is important that (s)he trust the original intent of the beneficiary to join the employer and employers intent to recruit the beneficiary.

There must be a memo with some clarifications in this regard.

My 2 cents :)

HV000 09-30-2007 10:44 AM

Thanks Gc_chahiye & Diptam!
I have a couple of questions. My employer has an in-house attorney who is responsible for green card processing.

1. If i change employers WITHOUT notifying USCIS, who gets the RFE (if any) in the future? My ex-employer or beneficiary (I got my I-485 receipt directly from USCIS)

2. If i change employers WITHOUT notifying USCIS after 180 days, what happens if my ex-employer tries to CANCEL my I-140?
Can USCIS cancel I-140 without receiving any AC-21 notification from me?

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