Layoff Job change - AC21 Risks , Choices and Benefits
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After 180 days have passed from your I485 pending date, your current employer usually does not have control over I-140 . This is where AC21 comes into play where you use a job offer in a SIMILAR position to change your green card sponsor. To work for that sponsor before your green card is approved, you would need work authorization - generally H1 or EAD.
To join new employer with AC 21 rule you need copy of the I-485 receipt and a new job offer. Having a I-140 receipt/approval copy is helpful.
Now the problem comes if your original sponsor withdraws I-140 after 180 days
The Risk
If I-485 has been pending for 180 days and I-140 is approved then AC21 portability rule can be used to change employers. All immigration experts say the risk is much smaller unless in cases where I-140 is not approved.
The risk to the employee/applicant arises if the employer revokes the approved I-140. As per the rule, USCIS is supposed to continue to process the case, if USCIS have been informed by the applicant about the use of AC21 in case of employer change. Very rarely it can happen that USCIS staff who lacks the knowledge will deny such cases.
Choices
What to do in the event such denial happens?
-> Grab an attorney and through them you can file a motion to reopen the denied case.
-> If at all you can do keep your H1-B status that way you will be in status/work authorization in case a problem comes up.
Benefits
Many have used AC21 without the above said problems. It is noted in many immigration forums that AC21 cases at large are smoothly going.
The wrongful denials after I-140 revocation continue to be a problem---but not a wide-spread problem. The procedure to be followed is clear, but the USCIS does not always follow it. Employers don't have valid reason to revoke I-140s anymore, since there are no labor substitutions.
Labels: AC21, green card, Immigration
written by Kalyan @ 4:08 PM,
Hello! Thanks for the wonderful information. So my understanding is that once you have your I-140 approved and you have passed 180 days from the reciept notification, one can use EAD if issued or get a H1-B transfer if sponsored to changing employers to a similar position/industry and and still have an active/pending case towards recieving Green Card. Pls confirm.
Thanks again!
This is referred to as AC21 portability law that once your I485application is pending for 180 days. You can use your EAD to work in another company in the similar position. I don't think H1-b transfer is valid any more once you use your EAD.
I don't get it. Why would USCIS give an UNEDUCATED person the power to deny an application? My ultimate question in all blogs is: Is there anything that we can do to get our money back in case this happens? Lawyers and MTR are not cheap. It's like having a nurse with no knowledge of nursing take care of you at the hospital.
Kalyan, Thanks for the info. My Q is that, does an employee need the former employer who applied for the I140 to not cancel I140 till 485 is approved? Thank you.
That's what I keep hearing reading from immigration forums that if employer cancels I-140 then the employee will have problems with AC21 portability. It is also rare it seems that employers cancel I-140 when employee leaves them. Check with your immigration attorneys of new employer you are shifting to.. to find out if this is the case.
Hope this helps!!
HI,
My I-140 is approved, but my employer has not yet applied I-485. They are saying it may be a while for them to apply I-485. Is it necessary that my employer should have applied for I-485 and past 180 days, for me to use AC21.
Thanks
Veeru
Veeru, I guess your employer didn't apply for I485 for a reason that priority numbers are not current now. If priority dates are current or your app met the date that visbulletin publishes each month then one can apply for I485. Yes in my opinion that with out applying 485 and been there in that status for 6 months you cannot use AC21 rule.
-Kalyan
Hi,
What happens if you have been waiting let's say since 2007 for your I-140 approval and you get lay-off? Both the I140 and I485 were filed at the same time. Thanks Koel
Do we need to inform USCIS about the job change ? My I-140 is approved and I-485 is pending for more than 180 days.I have been laid off and my previous employers attorney told me that they will not revoke the I-140.
DO I need to file anything for AC21 ?
my i-140 was revoked because of their errors. but i already moved to another company without sending them a letter which i know is automatically under ac21 after 180 days. now me and my family is in removal due to out of status issue. im appealing it to bia. whats next?
I'm Kalyan from Chicago, Illinois, United States. I write articles about Cricket matches and their reviews, Money saving Deals and tips, Immigration info related to Green Card or EAD or AP or H1-B, Road to MBA degree and afterwards. I'm writing in hope and passion that one person will be better because he or she benefits from these posts.
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