AC-21 Porting with EB-3 to EB-2 Migration ?

[ibbu_arif]

Hello Immigration Gurus,

Below is my status.

Company A:

================

EB-3 PERM with PD Feb-2006.

EB-3 I-140 approved

I-485 filed during August 2007 wave.

Have EAD and AP.

Still with Company A:

===================

EB-2 PERM filed in 2012

EB-2 I-140 approved and the PD got ported . (The Lawyer confirmed the my I-140 approval notice has the date of Feb 2006).

Not sure if the attorney's "Inter-filed" my I-485 from EB-3 days with the new EB-2 /I140 . They are not giving definite answers.

Now Company A is shutting down and they us notice that we will be on Pay-roll until September 2013 only.

Now my questions are :

==================

a) If I get a job in Company B before September, Considering my attorney already "inter-filed" Can I file for AC-21 only in EB-2 category? (or) Do the AC-21 has to be EB-3 Category ?

b) Do I need to re-file the PERM and I-140 in EB-2 again with Company B and once they get approved, Do I need to "inter-file" my I-1485 again with new EB-2 petition from company B ?

c) What are the chances that Feb 2006 date becomes current before Sep 2013. Hoping this happens and I don't have to worry about the porting etc.,

d) What happens if my PD becomes current in first week of September and I am out of Job by end of September 2013 and I didn't yet find a job in Company B ? Would that create a situation where the USCIS start processing my I-1485 with company A and by the time they make a decision, I am out of Job and it prompts USCIS to deny the GC?

Thanks

Ibrahim

[ibbu_arif]

One additional question :

e) Can I do the Interfiling myself or using an external lawyer, if my company's attorney is not willing to interfile or not confirming whether he did it or not.

[Belle]

a) AC21 will be filed on your I-485. It will apply to whichever category your petition currently is. Get a good lawyer to review the situation and come up with an exact plan.

b) No, and possibly yes, when your EB2 PD is current. USCIS would not interfile until the PD is current, and it is not clear if yours has been.

d) The USCIS may issue a job RFE on your petition, in which case you will have 30-60 days to respond. It is not certain if they will issue one, though.

e) Yes.

Just look for a new job. You have plenty of time.

[ibbu_arif]

Thanks Belle for your detailed answers. I am planning to set up a Phone-Consultation with Murthy Attorney's and come up a exact plan.

Please let me allow to summarize what I understand form your responses.

a) So my AC-21 will be on EB-3 only since that is what my I-485 was based upon.. Am I right ?

(or)

Are you saying, since my new petition is EB-2, my I-485 is automatically applied to EB-2 and hence AC-21 can be done on EB-2.

(Sorry, I am a bit confused.)

b) My PD ( Feb 2006) for EB-2 was never current. EB-2 PERM was filed in August 2012 and EB-2 I-140 was approved in Dec 2012.

So, Is my below assumption right then :

- Find a job in Company B, do AC-21 porting for my EB-2 petition and when PD becomes current, Interfile my I-485 (from EB-3 days) with EB-2 / I-140 ?

c) One concern is would the company A (where I am currently working) have a chance to revoke my EB2-140 (approved in Dec 2012) or would that be invalid since my AC-21 rights already got vested ?

Appreciate your response.

Thanks

Ibrahim

[Belle]

a) What I am saying is that you likely need to use AC21 on EB3 first, and then use it again on EB2 petition when your PD is current. You can't switch to EB2 until the PD is ciurrent, and then you can use AC21 on that petition.

b) Yes.

c) Deal with it as it comes. Not much you can do to prevent it. File an AC21 request preemptively, and then see what happens.

[Mr.A]

FYI,

I am in same boat as yours ibbu_arif. It's possible that your I-485 is interfiled with new EB2 already (even though your 485 was not current after EB2 I-140 approval (which has PD ported from EB3) - I feel USCIS has no logic why they do what they do. So call up USCIS and talk to 2nd level Immigration Officer (I did and they confirmed that it's done for my case). Other thing you can do is - take InfoPass appointment and check.

Belle - when can you file (or it's safe) for AC21 - 180 days after 485 is filed - correct? But what about EB2-Eb3 interfiling situation? Would you say it's safe to file for AC21 after 180 from I-485 is interfiled with Eb2? Please advise.

[Belle]

"when can you file (or it's safe) for AC21 - 180 days after 485 is filed -"

The notion of "safe" is substantially different from the notions of "possible". AC21 is possible when "I-485 petition has been pending for more than 180 days and remains unadjudicated". Since there is no requirement of I-140 being filed or approved in any certain timeframe, I would expect the USCIS not to impose any requirements on I-140 timing - other than for I-140 to be approvable, of course.

[Mr.A]

Belle,

Thanks for the quick response. But what about AC21 in EB3 to EB2 upgrade case?

My I-485 was filed in 2007 (based on EB3 I-140 - which is well over 180 days now), but my I-140 in EB2 (new application) was approved in Aug 2012. USCIS agent told me that my I-485 is upgraded to EB2, so assuming it was also done in Aug 2012 (along with EB2 I-140 approval).

So can I file for AC21 based on my EB2 application?

*) Does my 180 days count start when I-485 was interfiled with my EB2 I-140?

*) Or it doesn't matter as long my EB2 I-140 is approved and I-485 was filed more than 180 days (in this case in 2007)?

Thanks for your help!!

ibbu_arif,

FYI - I went for InfoPass appointment, but they didn't give me much information. So probably not worth wasting time on.

[Belle]

But what about AC21 in EB3 to EB2 upgrade case?

What about it? What exactly is your question. Because the law says nothing about "upgrade" cases, nothing would be different about them - the criteria will be applied exactly as written in the law, which I cited to you almost to the letter.

[Mr.A]

Belle - thanks for the clarification. Appreciate it!!

[ibbu_arif]

Thanks Mr.A ,

I will call into USCIS and try to get the information on my I-485 state.. Did it already get upgraded to EB-2 or not.

[ibbu_arif]

Hi,

I called USCIS and talked to their immigration officer. He confirmed that the latest update on my I-485 is that it is "pre-adjudicated". I asked does this mean my I-485 is upgraded to EB-2 and he confirmed yes, it is in inter-filed already.

So it looks like, my I-485 from EB-3 days is inter-filed/linked with EB-2 petition.

So my questions (hopefully final one :) ) :

a) "When I move to employer B in September 2013, I can just do AC-21 Port in EB-2 category directly and don't have to file a new EB-2 petition.. Is that right ? "

b) and my employer doesn't have any right to "revoke" my EB-2 / I-140 . Am I right ?

Thanks

ibrahim

[ibbu_arif]

Appreciate any responses to my final questions...