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Topic: Employer doesnot respond to RFE, then ...
I am planning to change my employer ... i have been waiting for so so long for my I140 to get approved and I have to change employer and move to another state for family reason. i will be using AC 21..in case I get an RFE and the employer doesn't respond then I will get denied, then I can file a MTR .. right? what the chance that MyMTR gets denied too? anybody with experience , please reply...
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The severity depends on the case you are going to get the RFE for.
1) If you leave the employer before your I-140 approval and USCIS issues a RFE for your employer and your employer doesnt not respond to the RFE, the I-140 gets cancelled; so does your I-485. In this case, i am sure you will have to struggle a lot as I-140 is your EMPLOYER's petition.
2) If your I-140 is already approved and USCIS issues an RFE for your I-485, then you have to send the response for that RFE. If you are not going to, then USCIS would cancel your I-485 and there is no ground for you to open the MTR, unless you are going to tell them that you responded to that RFE and your RFE didnt reach the USCIS.
S..
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...then I can file a MTR .. right?..
not necessary. It depends on why your I-485 was denied. If it was denied because you didn't send some document or USCIS claims that you were out of status, in short - if you have basis to argue with USCIS, then you can file MTR. But if your I-485 was denied due to revoked I-140 - then you don't have basis to argue for I-485. You can't have EB I-485 without I-140, so your MTR won't be accepted.
If your I-140 isn't approved and you suspect that your employer might not respond to RFE or withdraw I-140, then you better stay with your employer, otherwise you taking a big risk. |
I believe you cannot leave your current employer without 140 approval.
Please check the link below for AC21 Clarification on Page 10 it says
"(d) Form I-140 Petition Must be Approved Prior to a Favorable Determination of a
ยง106(c) AC21 portability request. "
http://www.uscis.gov/files/nativedocuments/AC21_30May08.pdf
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I believe you cannot leave your current employer without 140 approval.
Yes, you can. What memo means, is that if your I-140 will be denied, then you won't be eligible for AC21 and your I-485 will be denied. Basically the rule is: regardless if you left your employer or didn't your I-140 must be eventually approved. |
I would say if you believe that your GC sponsor will respond to any of your I-140 RFE (in future), then don't file for AC21 just do the H1 transfer to work for another company. As we know that GC is for future employment.
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there is no such thing as "filing for AC21". AC21 is just a law that allows you to change the employer if your I-485 was pending for more than 180 days.
GC is for future employment, but that future employment has to be "certified", which means you need LC and I-140 approved. If you don't, then you can't get GC and if you transfer to another employer you will need to redo LC and I-140.
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GC is for future employment, but that future employment has to be "certified", which means you need LC and I-140 approved. If you don't, then you can't benefit from AC21 and if you transfer to another employer you will need to redo LC and I-140.
Beyond 180 days of a filed 485, one is free to move to another employer under AC21 even if the 140 is not approved. However it is risky as that case owner is the previous employer, who could refuse to answer an RFE on the 140 out of spite or just plain revoke the 140.
Just as an aside, once an 140 is approved, one could move to another employer (even without a filed 485), redo the Labor/140 again but yet retain the PD from the earlier Labor.
A side-effect of the Plus Pilot Pgm at Texas has been that CIS is ignoring the 140 cases of the tsunami filers of Jul/'07 who had filed concurrently but whose PDs are not current. Logical in a way, but these folks are stranded - practically can't use AC21 - just waiting for their PD to get current. |
Yeap... I suspect businesses would be lobbying for such situation, because July floodgates would free so many slaves. Yet without approved I-140 people would be freaking out to leave the owners.
And for USCIS it's better - they just review the file once: less work. I suspect that's why they are so resistant to reinstate premiums.
It will be bad for July filers... they kinda filed for I-485, but can't get much from it. They can't change employers and redo LC/I-140 and retain priority date, since I-140 is not approved. They are afraid of using AC21, because pissed employers will screw their cases.
Yet they didn't get much benefits of filing I-485. EAD/AP are more expensive to maintain. Yet entering on AP doesn't clear the "history", while H1 would.
The good thing of having filed I-485 is that now spouses can work (legally)... and start paying taxes..
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do you mean if i do H1 transfer then I will keep my I140 and I485 application , and i don't have to file a new one since I changed employer...
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drobg: You have not filed your 485 yet, so it won't work. You need to have a 485 that is pending for 180 days, and (preferably) an approved 140, for you to change employers and not adversely impact your AOS process.
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The good thing of having filed I-485 is that now spouses can work (legally)... and start paying taxes..
Just wondering why paying taxes is a good thing? Because Uncle Sam said so? |
The good thing of having filed I-485 is that now spouses can work (legally)... and start paying taxes..
Just wondering why paying taxes is a good thing? Because Uncle Sam said so?
I was sarcastic :) but... in general... - yeah... paying taxes is a good thing... yeah... because Uncle Sam said so... |
I140 and I485 have been filed in August , so way more than 180 days. but I knew that to invoque AC21 to change my employer i have to have an approved I140 according to the new memo from USCIS, I was thinking whether by doing H1 b transfer, then that would work.. Butwhat would be the impact on My I140 and 485 application? thanks
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drobg, since I140 is your employer's pettion it is always safer to change the employer (even a H1B transfer) once it is got approved. Since you already crossed 180++ days on pending I485 application there wont be a problem in changing employer after I140 is approved. Since your I140 is pending so long and your current I485 is current (i think so) there might be a chance that your I140+I485 both will get approved at the same time. Ask your attorney if he can talk to USCIS. Goodluck to you.
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