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singhsa3
07-26-2008, 08:17 AM
Folks,
I am starting this thread to build resources as it relates to using AC21. I am hoping this will be of great use to the community. I will also request Admin to make this sticky once this thread gain some traction. So please contribute by posting
a) Any lawyer's opinion
b) USICS documents
d) Personal experience
e) Documents required
f) Other things you deem relevant to the thread.

One of the most important AC21 guidance : Aytes Memorandum of December 27, 2005 can be found here
http://www.uscis.gov/files/pressrelease/AC21Intrm122705.pdf
Please do not ask question and post unrelated topics.
I know dots don't matter but I will be giving green dots to the appropriate contributors as an acknowledment of your partcipation.

Please also see Chandu's Blog
http://immigrationvoice.org/forum/blog.php?b=12

Thanks
Sanjeev

imneedy
07-26-2008, 11:56 AM
\ slb \ SERVICE LAW BOOKS MENU \ IMMIGRATION AND NATIONALITY ACT \ INA: ACT 204 - PROCEDURE FOR GRANTING IMMIGRANT VISAS \ Act 204(b)

Act 204(b)

(j) 3/ 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.


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\ publaw \ Pub. L. 106-313 American Competitiveness in the

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

(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.”.

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\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 20 Immigrants in General \ 20.1 Numerical Limitations and the Visa Bulletin.

20.2 Petition Validity.



(a) General . Immigrant visa petitions are valid indefinitely until they are used as a vehicle for immigration or adjustment of status or until they are revoked. In specific cases, an approved petition may be “converted” to another classification. For detailed information on such cases, confer with applicable regulations in 8 CFR 204. In any instance where there is a significant lapse of time since the petition was approved, the adjudicator considering an application for adjustment (or a consular officer handling t he immigrant visa case) should take appropriate steps to ensure the relationship, job offer, etc. on which the original approval was premised continues to exist. Occasionally, USCIS will receive such a petition back from a consular office with a request for follow-up action to reaffirm the facts of the petition. Such cases should be handled routinely, verifying the facts in the same manner as if a new petition were being considered.



(b) Approval of a Subsequent Petition . At times, a petitioner may resubmit a petition seeking the same benefit as the prior petition, although the earlier petition may remain valid. If such a petition is approvable, the remarks block of the petition should be noted to reflect the filing and approval dates of the first petition. The original priority date is assigned to the new petition.



(c) Validity after Revocation or Withdrawal . Pursuant to the provisions of section 106(c) of the American Competitiveness in the Twenty-First Century Act (AC21), Public Law 106-313, the approval of a Form I-140 employment-based (EB) immigrant petition shall remain valid when an alien changes jobs, if:


· A Form I-485, Application to Adjust Status, on the basis of the EB immigrant petition has been filed and remained unadjudicated for 180 days or more; and


· The new job is in the same or similar occupational classification as the job for which the certification or approval was initially made.


If the Form I-140 has been approved and the Form I-485 has been filed and remained unadjudicated for 180 days or more (as measured from the form I-485 receipt date), the approved Form I-140 will remain valid even if the alien changes jobs or employers as long as the new offer of employment is in the same or similar occupation. If the Form I-485 has been pending for less than 180 days, then the approved Form I-140 shall not remain valid with respect to a new offer of employment.


Accordingly, if the employer withdraws the approved Form I-140 on or after the date that the Form I-485 has been pending 180 days, the approved Form I-140 shall remain valid under the provisions of §106(c) of AC21. It is expected that the alien will have submitted evidence to the office having jurisdiction over the pending Form I-485 that the new offer of employment is in the same or similar occupational classification as the offer of employment for which the petition was filed. Accordingly, if the underl ying approved Form I-140 is withdrawn, and the alien has not submitted evidence of a new qualifying offer of employment, the adjudicating officer must issue a Notice of Intent to Deny the pending Form I-485. See 8 CFR 103.2(b)(16)(i). If the evidence of a new qualifying offer of employment submitted in response to the Notice of Intent to Deny is timely filed and it appears that the alien has a new offer of employment in the same or similar occupation, the USCIS may consider the approved Form I-140 to remain valid with respect to the new offer of employment and may continue regular processing of the Form I-485. If the applicant responds to the Notice of Intent to Deny, but has not established that the new offer o f employment is in the same or similar occupation, the adjudicating officer may immediately deny the Form I-485. If the alien does not respond or fails to timely respond to the Notice of Intent to Deny, the adjudicating officer may immediately deny the Form I-485.


If approval of the Form I-140 is revoked or the Form I-140 is withdrawn before the alien’s Form I-485 has been pending 180 days, the approved Form I-140 is no longer valid with respect to a new offer of employment and the Form I-485 may be denied. If at any time the USCIS revokes approval of the Form I-140 based on fraud, the alien will not be eligible for the job flexibility provisions of §106(c) of AC21 and the adjudicating officer may, in his or her discretion, deny the attached Form I-485 immediately. In all cases an offer of employment must have been bona fide, and the employer must have had the intent, at the time the Form I-140 was approved, to employ the beneficiary upon adjustment. It should be noted that there is no requirement in statute or regulations that a beneficiary of a Form I-140 actually be in the underlying employment until permanent residence is authorized. Therefore, it is possible for an alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employed by the prior petitioning employer or the subsequent employer under section 204(j) of the Act.

imneedy
07-26-2008, 11:58 AM
Check this thread for questions on future employment:

http://immigrationvoice.org/forum/showthread.php?t=17827

Also this is the response from my attorney:

The AC21 doctrine does not apply to future employment application. AC21 applications refer to instances where an applicant is already working for the sponsoring company and then leaves the sponsoring to join a new organization. In future employment case, if the sponsorship is for future employment, then you have never worked for the sponsoring company. Therefore, the issue can be raised as to your intention to join the company and the company's intention to sponsor you.

From USCIS Website:

Therefore, it is possible for an alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employed by the prior petitioning employer or the subsequent employer under section 204(j) of the Act.

singhsa3
07-26-2008, 11:59 AM
Just gave you some greens. You went to 4 greens from 1. Thanks for your contribution.
\ slb \ SERVICE LAW BOOKS MENU \ IMMIGRATION AND NATIONALITY ACT \ INA: ACT 204 - PROCEDURE FOR GRANTING IMMIGRANT VISAS \ Act 204(b)

............

Michael chertoff
07-26-2008, 01:16 PM
I have changed my job using EAD to different company 4 months ago without invoking AC21.

I asked an attorney that if it is ok that I will keep working with new employer without invoking AC21 as far as I am not getting a RFE.

He said don’t worry about AC21 if you are not getting any RFE, in case of RFE just send AC21 document from new employer. And if you don’t get any RFE and get I-485 approved then just go back to your old employer and ask him for a letter that he can not offer you a job because of some reason and you just keep working with new or any employer without informing USCIS ever.

BTW the letter from old employer for non job availability is for your records, if you need that at the time of Citizenship.

singhsa3
07-26-2008, 01:55 PM
Michael,
Please throw some light. For example , does your Attorney also beleive that at the time of RFE the letter that you would need to send to USCIS can be just an employment letter addressed to " To whom it may concern" or it has to specifically addressed to USICS.
I have changed my job using EAD to different company 4 months ago without invoking AC21.

I asked an attorney that if it is ok that I will keep working with new employer without invoking AC21 as far as I am not getting a RFE.

He said don’t worry about AC21 if you are not getting any RFE, in case of RFE just send AC21 document from new employer. And if you don’t get any RFE and get I-485 approved then just go back to your old employer and ask him for a letter that he can not offer you a job because of some reason and you just keep working with new or any employer without informing USCIS ever.

BTW the letter from old employer for non job availability is for your records, if you need that at the time of Citizenship.

nonimmi
07-26-2008, 02:04 PM
I have changed my job using EAD to different company 4 months ago without invoking AC21.


Good info!

One thing I don't understand what you mean by - "without invoking AC21". My understanding is - once we change employer during AOS (after 180 days) we automatically invoke AC21 as that is the rule permits us to do so!!

Now whether or not we send paperwork to USCIS that is not important as USCIS doesn't ask for that. Also there is no concrete example that they really update our AOS case with AC21 paperwork if we send it after job change.

I believe your attorney is right that - we need to send those documents only if we get any RFE. Regarding getting letter from old employer may be a good idea.

Michael chertoff
07-26-2008, 02:50 PM
Michael,
Please throw some light. For example , does your Attorney also beleive that at the time of RFE the letter that you would need to send to USCIS can be just an employment letter addressed to " To whom it may concern" or it has to specifically addressed to USICS.

Sanjeev:

I am sorry I did not ask him this question...
But I think,I will send letter specifically address to USCIS, with attaching my EVL addresed to me.

MC

indiancitizen77
07-26-2008, 04:07 PM
I had the same situation too a few years ago. My labor was in backlog reduction when my company was acquired by a national company. Since it was an asset acquisition - we couldnt use the successorship-of-interest with the new company. A substitution from an out of state subsidiary of the company saved me from going back home. The company lawyer advised to use AC-21 to switch back to my current H1B sponsoring subsidiary since it is >6 months after 485 filing with an approved 140. Do I need to do a portability letter to switch from the subsidiary(my future employer) or do I wait for the RFE. Can I switch to a different local employer same or similar occupation? I am worried about being bumped back when dates progress in august. Please advice....dont know what to expect.:confused:

map_boiler
07-27-2008, 02:54 AM
Edited: I decided to remove this post after stumbling on Ron Gotcher's forum and after receiving advice from multiple attorneys about "not filing AC21 papers".

If someone still wants my original post, please email me and I'll send it to you.

map_boiler
07-27-2008, 02:58 AM
Edited: Same reason as above.

map_boiler
07-27-2008, 03:18 AM
When you say "subsidiary (my future employer)", does that mean that you've never worked for them before? So this was a labor-sub based GC sponsorship based on future employment, correct? If yes, then from what I know it would be better for you to work for them for at least 6 months to a year after your GC is approved. Not sure about how AC21 will apply here...

I had the same situation too a few years ago. My labor was in backlog reduction when my company was acquired by a national company. Since it was an asset acquisition - we couldnt use the successorship-of-interest with the new company. A substitution from an out of state subsidiary of the company saved me from going back home. The company lawyer advised to use AC-21 to switch back to my current H1B sponsoring subsidiary since it is >6 months after 485 filing with an approved 140. Do I need to do a portability letter to switch from the subsidiary(my future employer) or do I wait for the RFE. Can I switch to a different local employer same or similar occupation? I am worried about being bumped back when dates progress in august. Please advice....dont know what to expect.:confused:

singhsa3
07-27-2008, 10:58 AM
Map_boiler,
Excellent contribution. You just got few green dots from me. Thanks for your contribution. You just went from one green dot to four green dots.
Sanjeev
I am close to sending my AC21 package to USCIS and am sharing the information I have so far here: BTW, I was planning .............

singhsa3
07-27-2008, 11:06 AM
Description:
This page provides access to significant and economically significant guidance documents issued by USCIS and those issued by the Immigration and Naturalization Service that apply to USCIS, as required by Executive Order 13422, Further Amendment to Executive Order 12866 on Regulatory Planning and Review (72 FR 2763, published January 23, 2007) and the Office of Management and Budget's Good Guidance Bulletin (GGP) (72 FR 3432, published January 25, 2007).


http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=14e0216956c4b110VgnVCM1000004718190aRCR D&vgnextchannel=14e0216956c4b110VgnVCM1000004718190a RCRD

inthehole
07-27-2008, 01:53 PM
Most of the employers, especially desi consultants will not share any of the LC documents to their employees. In that case how can we prove that the current job is similar to previous job?.

If we must prove that the new job is same or similar to the current job, then we must first get the blessings from the current employer before we change the job. Because the current employer must either provide us with a letter mentioning the current job title and the description or must share the copy of Labor Certification documents. Am I wrong?.

indiancitizen77
07-27-2008, 02:43 PM
National companies apparently work as wholly owned subsidiaries with separate employer IDs for their accounts receivable. The company lawyer said that as long as there was a bonafide offer at the time of the 140 filing I should be able to port with AC 21 per section 106. Again, not sure if the IO would share the view. Only time will tell....will keep the forum posted.


When you say "subsidiary (my future employer)", does that mean that you've never worked for them before? So this was a labor-sub based GC sponsorship based on future employment, correct? If yes, then from what I know it would be better for you to work for them for at least 6 months to a year after your GC is approved. Not sure about how AC21 will apply here...

map_boiler
07-27-2008, 04:04 PM
1. Try and reason with the desi consultant to share the LC, I-140 petition, and I-140 approval copies with you. Technically, even though the LC and I-140 are the employer's, they were actually filed on your behalf. Also good to have some other job option(s) lined up before you talk to them...

2. If you know the name of the immigration attorney, try and contact them directly to get copies of those documents.

3. Consult/hire an immigration attorney who could help obtain the documents from your employer/employer's immigration attorney so that he/she can represent you on the pending I-485. Typically, when you change immigration attorneys midway through the process, the current attorney can legally request all pertinent case documents (not sure if this limits you to obtaining only copies of the I-485, I-765/I-131 and any other applications that were filed on your behalf as opposed to your employer's behalf).

Most of the employers, especially desi consultants will not share any of the LC documents to their employees. In that case how can we prove that the current job is similar to previous job?.

If we must prove that the new job is same or similar to the current job, then we must first get the blessings from the current employer before we change the job. Because the current employer must either provide us with a letter mentioning the current job title and the description or must share the copy of Labor Certification documents. Am I wrong?.

singhsa3
11-08-2008, 03:30 PM
Bump, please share you experiences.

chanduv23
11-08-2008, 04:02 PM
I hope this helps

http://immigrationvoice.org/forum/blog.php?b=12

singhsa3
11-08-2008, 04:04 PM
Thats really good. If you don't mind, I want to add to the orginal post.
I hope this helps

http://immigrationvoice.org/forum/blog.php?b=12