Layoff Job change - AC21 Risks , Choices and Benefits
With news of US economy going into probable recession there is at least one or two major layoff announcements appearing in the news mainly from financial sector companies. This post may be useful who have their EAD's and are looking for a job change.
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
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.
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.
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.
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,
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Green Card : For AC21 (layoff or job change) law - Is I485 receipt or notice date ?
You have filed I485 and are now thinking of all future questions of job change or layoff and their effects on Green Card.Then this is the right post for you.
What is AC21 law ? The AC21 law provides in general that one who has an approved I140 petition and I485 pending at least 180 days and accepts new permanent employment will still be eligible for adjustment if the new job is in the same or similar occupational category as the original job offer.One who is accepting new employment under the green card portability rules of the AC21 law and wishes to notify USCIS about the basis for one's continuing eligibility to adjust status is generally able to satisfy the notice request of USCIS by providing a letter with the details of the new job and the start date.
The big question though is of "received date" or "notice date" that is taken into consideration for AC21 portability law ?
As all forums and bulletins suggest it is received date.
See this image below to locate received date -
Also note there is no limit to the number of job changes permitted under AC21. There is also no actual notification required, but we recommend notification. However, the job offer underlying a green card case must be permanent/indefinite. If a person is moving from job to job, it may appear that they do not have stable, permanent employment.
Generally, one can try to minimize the possible harmful impact of an I485 being denied by maintaining H1B status if one accepts new employment while the I485 is pending instead of using an EAD card.
It appears that it is always better to maintain the H-1B throughout the green card process as a redundant system especially as there are no regulations that explain AC21. It is better but does not appear to be required. Based on guidance it appears that AC21 portability requirements are met when the I-140 is approved, the I-485 has been pending for over 180 days and the new job is in the same or similar job classification as the original position sponsored.
What is AC21 law ? The AC21 law provides in general that one who has an approved I140 petition and I485 pending at least 180 days and accepts new permanent employment will still be eligible for adjustment if the new job is in the same or similar occupational category as the original job offer.One who is accepting new employment under the green card portability rules of the AC21 law and wishes to notify USCIS about the basis for one's continuing eligibility to adjust status is generally able to satisfy the notice request of USCIS by providing a letter with the details of the new job and the start date.
The big question though is of "received date" or "notice date" that is taken into consideration for AC21 portability law ?
As all forums and bulletins suggest it is received date.
See this image below to locate received date -
Also note there is no limit to the number of job changes permitted under AC21. There is also no actual notification required, but we recommend notification. However, the job offer underlying a green card case must be permanent/indefinite. If a person is moving from job to job, it may appear that they do not have stable, permanent employment.
Generally, one can try to minimize the possible harmful impact of an I485 being denied by maintaining H1B status if one accepts new employment while the I485 is pending instead of using an EAD card.
It appears that it is always better to maintain the H-1B throughout the green card process as a redundant system especially as there are no regulations that explain AC21. It is better but does not appear to be required. Based on guidance it appears that AC21 portability requirements are met when the I-140 is approved, the I-485 has been pending for over 180 days and the new job is in the same or similar job classification as the original position sponsored.
Labels: AC21, i485, Immigration
written by Kalyan @ 1:11 PM,
,
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.
