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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 06-24-2007, 10:46 AM
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Default Removal of AC 21 Change of Employment 180 Days Shocking News From Immigration-Law.com

<EDIT>>>>>>THIS WAS REPORTED IN ERROR BY THE MATTHEW OH LAW FIRM AND HAS SINCE BEEN CORRECTED ON THEIR WEBSITE. THERE IS NO CAUSE FOR ALARM. THANKS TO ALL THE MEMBERS AND PAPPU FOR THEIR EFFORTS>>>>>

06/24/2007: Removal of AC 21 Change of Employment 180 Days After Filing of I-485 Applications Under CIR, EB Visa Backlogs, and Survivability of EB 485 Filers

The July 2007 Visa Bulletin will open a window that will allow the EB immigrants that have suffered from a long visa number backlog to better survive even if visa number retrogresses again after filing of I-485 applications thanks to Section 106 of AC 21 Act that permits the EB-485 filers to change employment in a similar or same occupational classification after 180 days of EB-485 filing without affecting the pending I-485 application. Accordingly, once they reach 180 days after filing of EB-485 applications, their lives will change to a situation almost similar to a permanent resident in that they can move any where and they can travel and work any where inasmuch as they take up a similar or job occupation in the United States. There is no limit to the number of changes in the employment after 180 days of filing of EB-485 applications and pending the 485 applications. This is a critical provision that enhances survivability of EB-485 applicants during the long and delayed journey of EB-485 applicants as affected by the ever-delayed security checks and ongoing and upcoming drastic reengineering of the USCIS immigration processing and adjudication system.
The S. 1639 CIR which the Senate will take up next Tuesday and attmpt to pass next week has a deadly provision which has gone unnoticed in the EB immigrant community. It is repeal of this provision under Section 419 of the S. 1639 bill and elimination of the opportunity to change employment for the EB-485 filers during and until EB-485 applications are decided regardless of the amount of delays they may have to endure after filing of EB-485 applications. Once this law is repealed and the EB-485 applicants lose the employment, no matter how long they have been waiting in the past and how long they will have to wait in the future, their journey to the immigration will practically end. Such long waiters will suffer extreme hardship in that because of their years of absence from their home countries, uproot of their ties in their home countries, their survivability in their home countries will be dubious if they are forced to return to their home countries. The AC-21 180-day change of employment law was intended to protect such EB-485 applicants of long 485 delays from such incredible hardship. Now, the CIR bill in the Senate is about to kill this protection which is so critical and vital for the survivability of the EB-485 applicants until the 485 journey is completed. The repeal of this law is particularly harsh because the CIR fails to increase the EB immigrant visa numbers to remove the current EB visa number backlogs in the near future. Considering the fact that once the EB visa number retrogrogresses again after the temporary relief in July and/or August 2007, there will indeed be a long wait for these 485 applicants because of the two factors, among others: One is the anticipated steep visa number retrogression. The other is the anticipated continuous backlogs in EB-485 processing and adjudications down the road due to the ongoing reengineering of the immigration processing system and ever increasing security clearance process. Additionally, the country's economy may gradually experience a slow-down affecting the labor markets for these foreign workers.
There is another problem involving the repeal of AC 21 180 day rule. It is the swift of power from the foreign professional workers to the employers and the foreign professional workers will remain under the uncontrolled whim of abusive EB immigration sponsoring employers attempting to take advantage of the flaws in the immigration system, to wit, their power to terminate the foreign worker employees' immigration journey by the threat or termination of employment during the long protracted process of EB-485 applications. Currently, AC 21 Act 180-day rule somewhat protects the foreign professionals from such abuse. EB-immigrant community should fight out the repeal of Section 106 of AC 21 Act under Section 419 of the S. 1639 CIR. Passage of the repeal of AC 21 Section 106 will literally drive the EB foreign professional workers into a hell and their lives being left abused and hanging in a thread. The July 485 filers should remember that July Visa Bulletin is just the step one to allow enter the door of opportunity and not the end of the painful journey.

Last edited by sertasheep; 06-24-2007 at 05:28 PM.
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  #2 (permalink)  
Old 06-24-2007, 10:48 AM
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Old 06-24-2007, 11:30 AM
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Pappu, I am confused now. Are you (and implicitly IV core) agreeing with what Mathew Oh from immigration-law is saying about repeal of AC21 provision which allows you to change employers after 180 days. I thought IV position has always been that the sections AC21 that are going to be repealed by the CIR was related to H1 extension after 6 years. Did IV change its interpreattaions of the cir as related to repeal of AC21 provisions. The bill analysis still talks about the h1 extension only, it does not talk about removal of provisiosn to change employer after 180 days.

Last edited by pappu; 06-24-2007 at 12:17 PM.
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Old 06-24-2007, 11:42 AM
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Quote:
Originally Posted by pitha
Pappu, I am confused now. Are you (and implicitly IV core) agreeing with what Mathew Oh from immigration-law is saying about repeal of AC21 provision which allows you to change employers after 180 days. I thought IV position has always been that the sections AC21 that are going to be repealed by the CIR was related to H1 extension after 6 years. Did IV change its interpreattaions of the cir as related to repeal of AC21 provisions. The bill analysis still talks about the h1 extension only, it does not talk about removal of provisiosn to change employer after 180 days.

Thats what my understanding was too. I dont think the text of the bill changed again. Did it?
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Old 06-24-2007, 11:49 AM
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EB system is gone then what is the need for this? Only for backlogged cases? If EB system is gone Why do you need to work for employer?
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Old 06-24-2007, 11:55 AM
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We have to take a deeper look at any of the updated text of the bill. Things may be changing and the text that is publicized may not be the latest.
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Old 06-24-2007, 11:56 AM
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Are you serious? Didn't you read that the applications prior to the introduction of this act will still be processed under the EB system? 80-90% of the folks here will still be under the EB system, but without AC21, if the report from Attorney Oh is true. Hopefully he is wrong.
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Old 06-24-2007, 12:00 PM
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Yes, things might change but what this Mathew oh from Immigration-law says is based on the current text not futher changes. From the current text is employer change after 180 days removed or not? Mathew Oh has put this update after comming from Aila confrence, might he have recived an update from other attorneys at AILA which made him post that update.? May god help us. If employer switch is reomoved then 485 is useless


Quote:
Originally Posted by janilsal
We have to take a deeper look at any of the updated text of the bill. Things may be changing and the text that is publicized may not be the latest.
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  #9 (permalink)  
Old 06-24-2007, 12:02 PM
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The law (if the bill is passed) usually affects the new filers of I485!
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Old 06-24-2007, 12:06 PM
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I think we are all confused.... We are so busy with 485 filing and not paying much attention on what's going on with CIR..
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  #11 (permalink)  
Old 06-24-2007, 12:06 PM
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Quote:
Originally Posted by tdasara
The law (if the bill is passed) usually affects the new filers of I485!
Cannot be sure until the core has done an analysis of this situation and gets back to us. Let us stop speculating.
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Old 06-24-2007, 12:08 PM
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Here is the clarification:

After looking at the latest text I found that only section 106(a) and 106(b) have been discarded from the AC21 act. Our 180 day provison is in section 106 (C). We are going to review the latest text once more to be certain, but this is what we found.
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Old 06-24-2007, 12:09 PM
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Quote:
Originally Posted by nixstor
Are you serious? Didn't you read that the applications prior to the introduction of this act will still be processed under the EB system? 80-90% of the folks here will still be under the EB system, but without AC21, if the report from Attorney Oh is true. Hopefully he is wrong.
If it is true for everyone (including those stuck in the backlogs), then this is the law we should oppose.

I think we should try at least put something in the law to allow those applicants in the current immigration backlogs (either labor, I140 or I485) to either continue with the application under the law or to apply under the new law. For applicants choosing to continue their application under the current law, all immigration benefits (including AC21) shall apply.

Will that be fair to us?
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Old 06-24-2007, 12:09 PM
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actual text of the CIR bill:
SEC. 419. H-1B STREAMLINING AND SIMPLIFICATION.
Sections 106(a) and 106(b) of the American Competitiveness in the Twenty-First Century Act of 2000--Immigration Services and Infrastructure Improvements Act of 2000, Public Law 106-313, are hereby repealed.
=========================

FYI:
Section 106 (a) of the Act permits the Service to extend the visa status of H-1B nonimmigrants, in annual increments, beyond the six year maximum if:

(i) an I-140 petition has been filed on their behalf; and (ii) more than 365 days have elapsed since the filing of their labor certification an/or I-140 petition.

Section 106 (c) of the Act permits employment based applicants for adjustment of status to change jobs and work for another employer if the adjustment application has been pending with the Service and remains unadjudicated for more than 180 days. The Act requires, however, that the new job must be in the same or similar occupational classification as the job for which the petition was filed

===============
SEC. 106. SPECIAL PROVISIONS IN CASES OF LENGTHY ADJUDICATIONS.

(a) EXEMPTION FROM LIMITATION- The limitation contained in section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)) with respect to the duration of authorized stay shall not apply to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of that Act on whose behalf a petition under section 204(b) of that Act to accord the alien immigrant status under section 203(b) of that Act, or an application for adjustment of status under section 245 of that Act to accord the alien status under such section 203(b), has been filed, if 365 days or more have elapsed since--

(1) the filing of a labor certification application on the alien's behalf (if such certification is required for the alien to obtain status under such section 203(b)); or

(2) the filing of the petition under such section 204(b).

(b) EXTENSION OF H1-B WORKER STATUS- The Attorney General shall extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made on the alien's lawful permanent residence.

(c) INCREASED JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS-

(1) Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is amended by adding at the end the following new subsection:

`(j) JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE- A petition under subsection (a)(1)(D) for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.'.

(2) Section 212(a)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)(A)) is amended by adding at the end the following new clause:

`(iv) LONG DELAYED ADJUSTMENT APPLICANTS- A certification made under clause (i) with respect to an individual whose petition is covered by section 204(j) shall remain valid with respect to a new job accepted by the individual after the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the certification was issued.'.

(d) RECAPTURE OF UNUSED EMPLOYMENT-BASED IMMIGRANT VISAS-

(1) IN GENERAL- Notwithstanding any other provision of law, the number of employment-based visas (as defined in paragraph (3)) made available for a fiscal year (beginning with fiscal year 2001) shall be increased by the number described in paragraph (2). Visas made available under this subsection shall only be available in a fiscal year to employment-based immigrants under paragraph (1), (2), or (3) of section 203(b) of the Immigration and Nationality Act.

(2) NUMBER AVAILABLE-

(A) IN GENERAL- Subject to subparagraph (B), the number described in this paragraph is the difference between the number of employment-based visas that were made available in fiscal year 1999 and 2000 and the number of such visas that were actually used in such fiscal years.

(B) REDUCTION- The number described in subparagraph (A) shall be reduced, for each fiscal year after fiscal year 2001, by the cumulative number of immigrant visas actually used under paragraph (1) for previous fiscal years.

(C) CONSTRUCTION- Nothing in this paragraph shall be construed as affecting the application of section 201(c)(3)(C) of the Immigration and Nationality Act (8 U.S.C. 1151(c)(3)(C)).

(3) EMPLOYMENT-BASED VISAS DEFINED- For purposes of this subsection, the term `employment-based visa' means an immigrant visa which is issued pursuant to the numerical limitation under section 203(b) of the Immigration and Nationality Act (8 U.S.C. 1153(b)).

Last edited by pappu; 06-24-2007 at 12:12 PM.
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  #15 (permalink)  
Old 06-24-2007, 12:21 PM
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So then ONLY IF CIR passes will the AC21 actually be REMOVED, Until then we are fine RIGHT??
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