When is AC21 acted upon

[absk82]

I am planning to change my job to a new employer which has a different job description. I have got my EAD but since then date has retrogressed. The new employer will be filing a new perm/I140 for me, but they will also use AC21 to see if my new job profile is portable with the existing I-140. The question I have is that once that AC21 related documents are sent, when does USCIS actually act on it ? I am told by my new employer's lawyer that the documents will be kept in my file and will be looked at once my PD becomes current, and by then I should already have my new perm/I140 approved, so I would have my EAD valid all through out. Now my concern is that if USCIS acts on the Ac21 prior to my date becoming current, then since the new perm/I-140 is not approved yet, I might get an RFE or something and might risk loosing my EAD which is something I want to avoid at all costs. Anyone has any information ?

[Belle]

Define "act on AC21 prior to the date becoming current" - I am not sure what you mean. Your EAD is valid for as long as your I-485 is pending. It has nothing to do with with AC21 or new I-140.

[Attorney_22]

Generally, USCIS will not perform an analysis of the qualifying employment until either the priority date is current, or the prior employer withdraws the I-140. However, USCIS has the discretion to review the AC21 notification and your file at any time. Therefore, it is generally advisable to be sure the new position qualifies for AC21.

[chintu45]

absk82,

Why is your employer going to file PERM /I140 again even you have EAD approved.

Are you joining new employer on EAD or H1-B?

Is your I-485 not pending >180days?

[absk82]

Thanks everyone for the responses!

@Belle , By acting on AC21, I meant this - When I use AC21 (whatever that entails) , does USCIS do any evaluation at all on my pending I-485 ? For example, will it compare the new job's description with the existing one and if found dissimilar, deny my I-485.

@Attorney_22 - If I am sure that previous employer will not withdraw I-140 and I don't file AC21, then they should not have a reason to look at my application, until my date becomes current right ? In that case, is it recommended to delay filing AC21 until I get my new perm/I-140 approved, so that my I-485 has little chance of getting denied ?

@Chintu45 - I will be joining on H1B and my I-485 has been pending for > 180 days. They will be filing new perm/I-140 because the new job description might not match with the previous description, so just to be safe, they said it is preferable to get a new I-140, so in case AC21 portability doesn't go through, we have a fallback option. The only thing I am worried about in all this, is if I file AC21 prematurely (before I got my new perm/I-140 approved), is there a chance I will loose my EAD because of different job descriptions, in case USCIS evaluate my application because of filing AC21 ?

[Belle]

If your I-485 is denied, you have a hole new bundle of issues, which really should be addressed separately and depending on the totality of the circustances at the time of denial. Yes, you would not be able to use your EAD (at least, technically) before you file an appeal... but trust me, that would be just one of your problems.

If you have a new I-140 and that is approved, you generally do not need AC21. It's not an either or, but essentially, a new I-140 overrides the old one, so there is no point in porting the old one other than protect yourself for the period of time before your new one is approved and the case is interfiled.

[absk82]

thanks a lot!