AC21 Job Change if Priority Date may Become Current

[Attorney_6]

This week, Murthy Law Firm attorneys will answer questions about changing jobs under the AC21 "green card" provisions in light of the Visa Bulletin cut off date movement.

 

 

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[nmbpl]

Can you please advice on what needs to be when one changes a job past 180 days of pending I-485? please advice on what the employee needs to do and what the new employer needs to do.

[Ray_raj]

Hi

 

I work for company A for the past 9 years. They filed my labor in December 2008 in EB3 category. It got approved and following that they filed my I-140 which also got approved in April 2010. In the same year I got promoted and they told me that they are ready to process the GC in EB2. I agreed but unfortunately the labor filed for EB2 category went into audit and got denied. But I was persistent and asked them to file again which got approved eventually and the I-140 for the EB2 also got approved in Feb 2013.

 

My company executed a multi-year project at one of our client which started in fall 2011 and got over in fall of 2013. But I am still continuing with the same client who is offering me a good position which I would like to take it.

 

My doubts:

1)      In this month Visa bulletin there was a huge jump from 2004 to Sep 2008 for India EB2 category. So, there are chances that my priority date Dec 2008 might come within couple of months. I can at least file I-485 and get EAD. So, can I change the Employer as soon as I get my EAD?

2)      I am still in H1 which is valid until May 2016 (got three year extension based on approved I-140), and my I-140 approval was received more than a year back. I guess I can use AC-21 portability and transfer my H1. Is it safe to do now? In this way I can ask the new employer to file for GC in couple of months after I join and get my priority date of Dec 2008 ported and be ready in June 2015 and file I-485 next year.

 

Or is there any other option? Please advice. I definitely would like to grab the new opportunity offered by my client. But at the same time, I don’t want to miss the priority date of Dec 2008 and also would like to receive the GC without any issues.

[Attorney_23]

Can you please advice on what needs to be when one changes a job past 180 days of pending I-485? please advice on what the employee needs to do and what the new employer needs to do.

 

From the MurthyDotCom AC21 Frequently Asked Questions article:

 

AC21 is a law that does not have regulations implementing its provisions. As such, there are no specific legal requirements as to what, if anything, has to be filed when AC21 is used. There are no forms, applications, or petitions to file. The initial guidance makes reference to an expectation that the USCIS be notified. This expectation has been reiterated in later guidance memoranda.

 

It has been the longstanding practice of the Murthy Law Firm to notify the USCIS regarding the use of AC21. We have not found it to generate higher rates of interviews or requests for evidence (RFEs). The value of such notifications has been confirmed over time. We find that, in most cases, it is the safest approach. Our strategy for new clients with AC21 cases is to take over representation in the I-485 and act as the attorney for the remainder of the case. Included in our work on the case is a notification of the use of AC21, along with proof that the case qualifies under the AC21 requirements.

[Attorney_23]

Hi

 

I work for company A for the past 9 years. They filed my labor in December 2008 in EB3 category. It got approved and following that they filed my I-140 which also got approved in April 2010. In the same year I got promoted and they told me that they are ready to process the GC in EB2. I agreed but unfortunately the labor filed for EB2 category went into audit and got denied. But I was persistent and asked them to file again which got approved eventually and the I-140 for the EB2 also got approved in Feb 2013.

 

My company executed a multi-year project at one of our client which started in fall 2011 and got over in fall of 2013. But I am still continuing with the same client who is offering me a good position which I would like to take it.

 

My doubts:

1)      In this month Visa bulletin there was a huge jump from 2004 to Sep 2008 for India EB2 category. So, there are chances that my priority date Dec 2008 might come within couple of months. I can at least file I-485 and get EAD. So, can I change the Employer as soon as I get my EAD?

2)      I am still in H1 which is valid until May 2016 (got three year extension based on approved I-140), and my I-140 approval was received more than a year back. I guess I can use AC-21 portability and transfer my H1. Is it safe to do now? In this way I can ask the new employer to file for GC in couple of months after I join and get my priority date of Dec 2008 ported and be ready in June 2015 and file I-485 next year.

 

Or is there any other option? Please advice. I definitely would like to grab the new opportunity offered by my client. But at the same time, I don’t want to miss the priority date of Dec 2008 and also would like to receive the GC without any issues.

 

Assuming you do not have an I-485 pending from your EB3 case, AC21 portability is not really a factor (i.e. it deals with people transferring employers after an I-485 has been pending for at least 180 days.) There is generally no requirement that you work for the sponsoring employer until the green card is issued. So, filing an H1B change of employer would not impact a pending case. Similarly, a person could move to a new company once an EAD is issued -- but, this is assuming the individual plans on joining the sponsoring employer once the GC is issued.

 

If you have no interest in remaining with the sponsoring employer, you likely would need to have the other company file a new EB2 case on your behalf, and then utilize the priority date from the earliest approved I-140.

[chakrakr]

Assuming you do not have an I-485 pending from your EB3 case, AC21 portability is not really a factor (i.e. it deals with people transferring employers after an I-485 has been pending for at least 180 days.)

 

Hello Attorney_23 ,  may I request you to clarify on this point of AC21 .   From Ayte's memo (http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm122705.pdf)   ,  I can see that it is NOT required that a 485 should be pending for 180 days before changing employment   (see below).  Unless Ayte's memo has been superceded ,  it should be fine , I believe.

 

I understand that if a person switch employer before 180 days AND if USCIS raises an RFE about employment during that period ,  it might be a problem.    To quote an Attorney ,  "if USCIS knocks your door within 180 days,  you might be in trouble".

 

However,   based on my consultation with some Attorneys,  I  understand that IF a person changes employment after (say)  100 days,   CIS raises   and RFE and allows 84 days to respond,  the person can wait for 80 days and reply to RFE to be technically on the right side. 

 

Extract from Ayte's memo --

 

"

Question 10. Should service centers or district offices deny portability cases on the sole

basis that the alien has left his or her employment with the I-140 petitioner prior to the

I-485 application pending for 180 days?

 

Answer: No. The basis for adjustment is not actual (current) employment but prospective

employment. Since there is no requirement that the alien have ever been employed by the petitioner

while the I-140 and/or I-485 was pending, the fact that an alien left the I-140 petitioner before the I-

485 has been pending 180 days will not necessarily render the alien ineligible to port."

[Attorney_23]

Hello Attorney_23 ,  may I request you to clarify on this point of AC21 .   From Ayte's memo (http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm122705.pdf)   ,  I can see that it is NOT required that a 485 should be pending for 180 days before changing employment   (see below).  Unless Ayte's memo has been superceded ,  it should be fine , I believe.

 

What this is saying is that changing employers is fine before 180 days; just as it's fine to change employers prior to filing an I-485, or, for that matter, not working for the petitioning company at all prior to filing the I-485. Again, the GC case is for a future position -- the beneficiary doesn't have to join the employer until the GC is issued. Under AC21, however, if the I-485 is pending for more than 180 days, the beneficiary would not be required to join the petitioning employer once the GC is issued.

[chakrakr]

What this is saying is that changing employers is fine before 180 days; just as it's fine to change employers prior to filing an I-485,

 

I guess it confused us more.   Changing employment before and after filing 485  is two different things .   If I change employer before filing 485,  I will need to start the whole process (from PERM )  again.   If I change after filing 485,  the process continues.  

 

The  main question I have is ,   does changing employment within 180 days of filing 485  allows one to continue the current 485  OR does one need to start the GC process from scratch  (like changing before filing 485)

 

From Ayte's memo,  it appears that changing employment within 180 days of filing 485   allows to continue the current 485.

[Attorney_6]

The entire AC21 concept is that the I-140 remains valid with respect to a new job offer. So, if a case falls within the AC21 GC requirements, the current (pending) I-485 can continue based upon a new job offer. The new job offer must be in the same/similar job classification as the PERM labor job. In these cases, there is no need to start over from "scratch."

 

The confusion here comes from what is meant by "fine" in terms of when to change jobs. While it is correct that GCs are future job offers, the GC must always be based upon a valid job offer. The USCIS must believe that the job offer is valid. Filing the I-485 requires the support of the petitioning employer. Thus, most of the time, if a person changes jobs before filing the I-485, the employer will not continue to offer the job and be willing to support the I-485 filing. (There are exceptions to this, if the employer would be willing to take the person back.) But, normally, if the I-485 is not filed, the person would need to start the GC again.

 

The Aytes memo is simply saying that AC21 does not require that a person work for the sponsoring employer for 180 days after the I-485 is filed. It IS necessary that the I-485 stays pending at least 180 days to use AC21. But, if the job offer was valid when the I-485 was filed, and the person changes employers after, say, 100 days, the USCIS could still approve the case (at the 180 day or longer point) if they determine that the job offer was valid when the I-485 was filed. 

 

Of course, leaving before the 180 day point is risky, because the USCIS can deny the case if they review it prior to 180 days and there is no proper job offer from the initial sponsor. AC21 does not help until 180 days have passed.

[Attorney_6]

The main concern of this topic is that the EB2 priority dates are moving forward. Thus, people who may desire a job change should consider the possibility that their GC case may get approved based upon their current job offers---usually through the initial sponsoring employer. It is generally better to make an AC21 based job change before approval, rather than making a job change shortly after one's GC is approved.

[vpgour]

Hello, I am currently considering a change in job as the new employer is willing to file GC in EB2.

I am currently working on my 3rd H1 visa term and my stay in USA is in 8th year (I am working in the USA since Jan 2007.

 

My current employer filed for my GC in EB3 with PD in Dec 2011, received I140 approval in sept 2012. I got the third H1 extension for 3 years with a validity till Jan 2016, for which the 3 year extension was applied in Dec 2012 after I received my I140 approval in Aug 2012.

 

Could you please advise if the H1 transfer that will be filed here, can that be applied/ granted for an extension for next 3 years so say till 08/2017 ? (considering we file in 08/2014).

Also can we check if the 365 day limit is also applicable to a candidate who already have I140 approved by some other employer (A) and seeking new employment with (B)

When is it that I must start the GC process with the new employer to avoid the 365 day constraint will it be Jan 2015 or Aug 2016?

I tried to look for this information on various forums but could not get a direct answer, so thought of checking with you as you are the authority here.

Also please let me know what all documents information I must collect before leaving the current employer.

 

Thanks and Regards

[Attorney_6]

Newbie,

 

1, The H1 extension with employer B can be granted for 3 years, based upon the EB3 I-140 approval with employer "A."

2. It is important to start the GC process as soon as possible with the new employer. In order to be certain of eligibility for more time, it is necessary to have an I-140 approval. That isn't subject to any 365 day rule.

 

3. The 365 day rule for H1 extentions beyond the 6 year limit may not work when the labor is filed after the 6th year. There was a time when it didn't matter, but, now, it can be a problem so it is best to have a better option with an approved I-140.

[vpgour]

Dear Sir, thanks for the response above, it clarifies major doubts.

in extension to the above query and just so that I could understand it better, requesting if you could clarify the below too,

 

1. So when I change employer, while transferring my H1, will this H1 be extended till Aug 2017 for Employer B based on I140 approval which was filed by employer A? (given that we file the H1 transfer cum extension to employer B in Aug 2014)

 

2. I am very much clear that seeking H1 extension based on an approved  I140 will be the best scenario. since the new GC process will take some time to begin with new employer B, and I am already in my 3rd 3 year H1 term (@ 8 years on H1), will my PERM case be subjected to the 365 day validity requirement till the H1 is valid? If yes?

will this be a must then to begin PERM process with the new employer B?

 

3. Will you please provide some more details around the 'problem' that may be there per point 3 above.

 

4. What all documents/information I must collect in order to safely transition to the new employer.

Thanks and Regards

[Attorney_6]

Newbie,

We can answer all the questions and go over this strategy in detail in an individual consultation. It is important to understand the issues before making the final decisions. However, for many people, the EB3 to EB2 "upgrade" is necessary in order to have any chance of becoming a permanent resident within the forseeable future.