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Topic: AC21 - Quick Reference !!
Hi Fellow Trackers,
I see lots of questions are being asked about using AC21. I referred to couple of links [not the discussion forums] and consolidated the main points. Hope it would be useful.
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- AC21 portability is generally available to the applicant whose I-140 has been approved and I-485 has been pending at least 180 days.
- The priority date doesn't change as a result of using AC21.
- The applicant is eligible to use AC21 to change employers multiple times until the GC is approved.
- The applicant can join with the new employer whose location [City or State] is different from the location of the GC Sponsor.
- In most cases, it is the applicant's responsibility to inform the USCIS about the new job. As of now there is no defined or formatted letter to use to inform the USCIS.
- While using AC21, dont forget to inform the USCIS about the following:
i) Address Change, in case if you relocate to a new apartment, city.
ii) Attorney Change, in case if you use a different attorney than the one who filed your I-485.
iii) New employer
- There can be a difference between the salary offered by the new employer and the salary mentioned in I-140/LC. However, if the difference is too low or high, then USCIS might issue an RFE to verify if the new job is in the same occupational classification. Also, the percentage of allowed difference between the salary from GC sponsor and the new employer is not yet defined.
- There won’t be any RFE for the employer to show the proof of 'ability to pay'. However a RFE is possible to confirm the legitimacy of the new employer and the job offer.
- Make sure the offer letter from the new employer has the same job description/duties detailed in the ETA 750 or in the I-140 application. The job title can be different as every company uses different title.
- The applicant can port himself/herself to self-employment as long as the new job is in a "same or similar" occupational classification as the job for which the original I-140 petition was filed.
- The USCIS stated in an August 4, 2003 memo that, if the GC Sponsor revokes an approved I-140 petition after the I-485 application has been pending for 180 days or longer, and there is no notification on file that the beneficiary is using AC21 portability, the USCIS must then issue a Notice of Intent to Deny (NOID) the I-485. In order to prevent the USCIS from issuing a NOID, it is generally advisable for the applicant to notify the USCIS of the job change under AC21 as soon as possible.
- If you suspect that the GC Sponsor can withdraw your approved I-140, then use a lawyer and inform the USCIS as soon as possible. It seems, sometimes, USCIS is not handling/encouraging the unsolicited mails properly and hence your notification might be lost in the pile or reach the data entry operator very lately. Meanwhile, USCIS might issue a NOID. So, get the help from the lawyer.
- The applicant can be without job in hand when I-485 is pending[pre-adjudicated] but at the time the I-485 is being adjudicated under AC21, the applicant SHOULD have an employment with the same job description/duties detailed in the ETA 750 or in the I-140 application,
- In order to avoid problems during naturalization (applying for citizenship), the applicant should be with the employer whose name is in the file at the time of I-485 approval for at least 180 days.
- Apply for EAD renewal at least six months in advance before it expires. It is not like H1B extension in which you can start or continue working once you file for the extension. If you are working in EAD, it is illegal to work after expired date though you have applied for the EAD renewal. ie.) EAD card expires on 01 Jun 2008. You have applied for extension on 01 Feb 2008. In case if you are not receiving the card on or before 01 Jun 2008, you are not supposed to work after 01 Jun 2008 until your new EAD card arrives.
- The only difference between the GC and using the AC21 is, using AC21, the applicant SHOULD be working in the "same or similar" occupational classification, whereas using GC, the applicant can work for any employer and take any kind of jobs.
Reference:
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http://www.murthy.com/news/UDac21qa.html
http://www.murthy.com/news/n_porret.html
http://www.murthy.com/news/n_yatmay.html
http://www.uscis.gov/files/pressrelease/AC21Intrm122705.pdf
Note : I am not a lawyer [ I have not seen any lawyer in person :-) ] ; so make your own decision and consult with your beloved ones and lawyer before using AC21.
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S..
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Thanks for the summery, its very helpful
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Great post, thanks for taking the time, this will be a very useful reference thread! :o)
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Great post, this post did clarify lot of my questions. Thanks allot GettingGC.
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Excellent work! Thank you!!
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Really appreciate your compilation, it will help to sort out lot of questions.
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AC21 portability is generally available to the applicant whose I-140 has been approved and I-485 has been pending at least 180 days. This statement is not TRUE.
If a 485 is pending for more than 180 days, you can change employers, irrespective of whether I-140 is approved or not. Under this sccenerio, you can change employer, as the previous employer has no control over your I-140 and even if they revoke I-140, all the service centre needs is AC21 papers. This rule is irrespective of the service centre in which the application is filed.
While your I-485 is your own application and the employer cannot withdraw it, the entire application rests on the I-140, which is the employer's application. Under previous law, the employer controlled the I-140 throughout the process. Withdrawal of the I-140 meant denial of the I-485. This matter has not been addressed under AC21. While it seems that the employer should lose control of the I-140 after 180 days in order to make AC21 fully effective, this issue needs further clarification. At this point, it appears that if the employer were to withdraw the I-140, the INS possibly could issue a notice to the beneficiary with respect to the processing of the I-485. The beneficiary might then have the opportunity to respond by showing another job offer. INS has not provided specific instructions or regulations as to how this type of situation should be handled in light of AC21.
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- The applicant can be without job in hand when I-485 is pending[pre-adjudicated] but at the time the I-485 is being adjudicated under AC21, the applicant SHOULD have an employment with the same job description/duties detailed in the ETA 750 or in the I-140 application,
Can you explain this in more detail? If you have I-485 pending for 180 days as the primary applicant, can you be out of a job for say 1 year (assuming I-485 doesn't get adjudicated within that 1 year), and then get back to another job with a similar role? When does the AC21 apply? At the time of leaving the first job, or at the time of joining the second job after 1 year?
Can I be out of US during that 1 year between the two jobs?
Replies to these questions will help me a lot. Thanks everyone. |
Yes, you can be out of job until your I-485 gets adjudicated. Remember, GC is for the prospective employment. However, you will never know when your case is getting adjudicated and USCIS will issue an RFE for the 'request for the employement".
AC-21 can be used ONLY with the new offer letter in hand.
S..
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Thank you.
1. Does the RFE go to the sponsoring employer or to the employee? How can I make sure I get notified of RFE, wherever I am, within US or abroad?
2. Can I be out of US during that 1 year between the two jobs? On what basis/status will I re-enter US? Currently my H-1B visa is valid until 2010.
3. If I stay out of US for 1 year, then do I need to file change of address form with USCIS?
robin
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Question to the experts on AC21. I am sure we all have faced this question from a prospective employer while applying for a job of needing or not needing 'sponsorship' . If I plan to use AC21, then technically am I requiring 'sponsorship' or not? I am led to believe that since I have my EAD, I probably don't require 'sponsorship'.
Also, some insight into what documents need to be submitted while using AC21 will be extremely helpful.
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Robin
- The RFE goes to the petitioner (it is you).
- If you have a valid H1B visa and it is not going to be cancelled by your H1B sponsor, then yes, you can go home and come back at any time on or before 2010. [How do you make sure your H1B is not cancelled? No idea....surf the net or Start a new thread.]
- Not sure; so don’t want to comment on this.
Ac21,
EAD is an authorization to work; so no need to have 'sponsorship'.
As I have mentioned, as of now, there is no defined form or letter to use AC-21. Technically, you should write a letter to the USCIS stating that you are leaving the GC sponsor and joining with another employer blah blah. Also, you need to send a copy of your new offer letter, which would describe the nature of the job, duties etc.
S..
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Thanks!
"- The priority date doesn't change as a result of using AC21. "
What bout Receipt date of initial I-485 application...? Does this change as a result of using AC21 ???
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GettingGC,
Great post, Buddy.
Please accept my compliments.
With Warm Regards
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Excellent post, Thank you for your time.
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AC21 portability is generally available to the applicant whose I-140 has been approved and I-485 has been pending at least 180 days. This statement is not TRUE.
If a 485 is pending for more than 180 days, you can change employers, irrespective of whether I-140 is approved or not. Under this sccenerio, you can change employer, as the previous employer has no control over your I-140 and even if they revoke I-140, all the service centre needs is AC21 papers. This rule is irrespective of the service centre in which the application is filed.
While it is true that under AC21 rule one can port to another employer even if I-140 is not yet approved while I-485 is pending for more than 180 days, there is still a risk that the original petitioner may not respond to any RFE which will make the I-140 "unapprovable".
For me, that risk is too high that I cannot take. Even the closest friend can betray you, how much more an employer who you left for another? In this world, I trust no one (except my God). |
Nothing changes in terms of RD, ND, PD, and your original petitioner is still your I-140 petitioner. The only thing that changes when you file for AC21 is the employer.
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thanks for the clarification Magicsword... So about the employer.. Is it so that the new employer will want to handle the AC21 handling or can one keep the original lawyer from the intial filing company to handle the case? Is this upto the new employer or the petitioner? What material does one need to submit to file AC21 if the petioner uses the original lawyer to handle the AC21 filing? Can one use AC21 after the petioner gets the new job offer or is this filed before the new job offer?
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Tennisstar,
The new employer will check only if you are having an EAD or not. That’s all. The rest of the things should be done by you. Having said that, the new employer also will help you to file AC-21 by providing the necessary documents such as offer letter, job description etc. Sometimes, they might allow you to go thro the company’s lawyer. Yes, you can use the same old lawyer to prepare AC-21 documentation for you.
To file, you might need the following:
- I-485 Receipt Notice
- Copy of your EAD
- Letter from the applicant to USCIS
- Copy of the offer letter
- A letter from your new employer [with the job description etc]
You can use AC-21 ONLY when you have a new offer in hand.
S..
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A very sad, but informative case of AC-21 used and I-485 denial because of I-140 revoked by old employer.
http://www.trackitt.com/discuss/485eb/46334699/
I am very sorry for the applicant in the subject, but sincerly I wish him success in his MTR and further proceedings.
Please be fully aware of AC-21 and its implications as its viewed and adjudicated by USCIS.
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Hi,
Is it okay to file for AC-21 if the I-140 is pending (485 is pending for more than 180 days and have an EAD) ?
What are the risks involved even after the GC sponsoring employer agrees not to touch the applications ?
Thanks in advance.
njgcseeker
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Thanks! Is it advisable to accept the offer before filing AC21 or is it better to file AC21 before accepting the offer?
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njgcseeker,
It is NOT okay to file for AC-21 if the I-140 is pending. Dont quit the current employer, [GC Sponsor] or join with another employer using your EAD, while your I-140 is in pending. The reasons are
1) Your employer may withdraw the I-140 petition at any time; Remember, i-140 is the employer's application and the employer can withdraw the application at any time.
2) If your employer is not interested in withdrawing the I-140 petition, then also there is a problemetic situation you might face. In case, if the USCIS is issuing a RFE for the I-140 , your employer wont respond to that REF (because you have left him). Hence, USCIS will reject your I-140 petition, after waiting for a while.
Refer the following thread for more cautions.
http://www.trackitt.com/discussion-forums/i485-1/52755705/
S..
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OK.. what if I-140 is already approved? Is it safe to file AC-21 then? Also, once AC-21 is filed... does one have to wait for acceptance from the USCIS before starting work with new employer or how does the process work from then on?
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Tennis: Is it worth the risk? That's the only question you have to ask yourself!
What's the gain?
What's the potential loss?
Why Am I taking this risk?
ymmv :o)
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Once the I-140 is approved, it seems, the employer is not having much control on that application. Please refer the thread in the above postings. However, after using AC-21, if the I-140 is withdrawn, then you will have an opportunity to use MTR.
When you are using the AC-21, there wont be any acceptance from USCIS. You are just updating them that you are working for a new employer in the same job category that you had mentioned in your LC/I-140. You can start working as soon as you file AC-21.
S..
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Another thing to consider:
Employer who filed too many I-140s could face some problems with USCIS regarding its ability to pay. USCIS is known for lumping all I-140 applications from same employer and gauge according to its current financial status if it has ability to pay all the pending applications.
Therefore, to prevent such thing from happening, the employer might be forced to withdraw some applications specially of those who already left the company even if the I-140 is already approved. That is to prove its ability to pay.
If the employer did not withdraw some applications, then another trouble. Many, if not all, of its I-140 applications maybe denied due to (in) ability to pay.
When approved I-140 is withdrawn after I-485 is pending for 180 days, USCIS will send the beneficiary a NOID.
With the current retrogression, we can see many of these happenings and invoking AC21 is really a tough and risky choice.
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Thanks for all your replies.. This is by far one of the best posts in terms of exchange of information. Anybody know, how much does it cost to file AC21?
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I do not think there is a cost (unless postage is counted or lawyer fees if you choose to use one).
Btw, your not filing anything, just sending a letter to USCIS telling them you are changing employer.
Thats my understanding.... next? :o)
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Magicsword, and/or others-
Looks like the major concern is here:
"When approved I-140 is withdrawn after I-485 is pending for 180 days, USCIS will send the beneficiary a NOID. "
Is this scenario documented anywhere in the "AC-21 quick references" ? Or is this one of those uncertain imaginable exceptions...Not sure...
It seems really strange that the company just withdraws the I-140? Is this only because of pre-determination that the sponsoring company's "inability to pay" since "too many I-140s are being filed"? What if the employee is responsible for the GC process costs? It's hard to digest that USCIS will "force" companies to withdraw the I-140, in the case that its possible that the employer is responsible for GC process costs.
Simple rule and no exceptions is that - If I-140 is approved and I-485 is pending for 180 days, you can file AC-21 and ....
The employer technically should not be able to withdraw or revoke an approved I-140 with/without an I-485 pending for 180 days... True?
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The employer owns the I-140, and as such, can withdraw/revoke at any time if they choose too.
NOID will be sent if employer withdraws I-140, it is then upto beneficiary (you) to show that they have a new job having same/similar job description.
USCIS does not force employers to withdraw I-140. Employers usually would withdraw cos they are pissed you left them.
Remember that AC21 is not a law and as such, the AC21 provision can be applied only at the discretion of the adjudicating IO.
AC21 is a guidance to IO's in the event a beneficiary leaves the sponsoring employer.
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If the I-140 is withdrawn by the original employer, does the beneficiary have to reapply the I-140 from scratch, after filing the AC-21? Or is it so, that due to the portability rule it is automatically ported to the new employer once the I-140 is withdrawn by the original employer?
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Tennistar,
It is well documented that when i-140 and I-485 is pending for 180 days, USCIS will send a NOID and the beneficiary will have an opportunity to file MTR. In the MTR, you can explain your situation. I would recommend that the MTR should be done with the help of an attorney.
Remember, the MTR will be useful and powerful only when you have a another job with the new employer in the same job category. When you receive a NOID, you can't fight back if you are not working for any employer using your EAD.
S..
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What happens in the case that an approved I-140 is revoked? and the AC-21 filed for the new company. Say MTR is performed because of NOID issued.
Whats the next step? Does the beneficiary now have to refile the I-140 again? (If so, could this be done by keeping the PD and RD intact and current?)
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Once I-140 has been approved and I-485 has been pending for at least 180 days, employer's revoking of I-140 will do nothing. At this point I-485 stands on its own. If you have notified USCIS about invoking AC21 and sent them the new job offer, there's should be no NOID.
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Hey Guys:
What about my case: Here goes:
I want some recommendation.. Can I use AC21 after 180 days. Now does it start from Receipt Date or Notice Date. My RD is July 31st 2007 and ND Oct 4th, 2007. Here my question and I am confused:
I work in Company A using H1-B and never filled because company had a small accounting department and my lawyer said not to file in Company A. I filed in company B, which hold 40% stake in Company A. I filled my LC/I-140 petition in Company B which I have never worked just intent to work once my I-485 is approve.
Could I transfer my case from Company B back to Company A because now I have large department and the firm has more than 90 employee and growing. Now does my I-140 process gets delayed for that. Do I have re-file and show taxes again. Please note I have EAD...Can I use EAD and work for 2 full-time jobs will there be any issues for my I-140 petition for AC21??
Intent to hire once my I-485 approved for future job, recommended to work for 180 days. Because I read lots of forum it says you are required to work 180 days once I-485 is submitted not once it is approved. So once I transfer using AC21 can I work for the future job for 180 days and then leave??
Please clarrify and let me know if that is going to be a problem..
Thanks
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H1b since Oct1999,LC may2001(pd),I-485 andI-140 filed concurrently Aug25, 2006.I-140approved OCt16,2006(Prem)
same employer H1B visa beyond the 6th year
EAD expired and is not renewed (my bad)expired Nov30,2007 i never used it!(reason i was trying to keep H1b status more safe than using EAD and then loosing H1b)
H1B extention for the 9th year( expired in Oct2007)
in my case if i wanna leave my current employer(I-140 pettetioner) while my H1b extention still been processed,i don't have a valid EAD now ..are my options:
1-wait till H1B get approved then do transfer to the new employer?any body know the transfer proceduers plz?
2-apply for the EAD renewal and when i have it change employer?
3- PLEASE ANY EXPERTS CAN HELP TO INLIGHT ME
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Message to nayymha
Are you referring to my case, could you please respond regarding my case which I posted above you..
Thanks
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Nayymha,
1-wait till H1B get approved then do transfer to the new employer?any body know the transfer proceduers plz?
** This is one option.
2-apply for the EAD renewal and when i have it change employer?
** This another option.
It all depends on what you want to do. As you have already mentioned in your posting, if you dont want lose your H1B status, then go for the H1B extension, but once your GC is approved, you are obligated to (supposed to) work for your GC sponsor at least for 180 days.
If you are using the EAD and changing the employer, then you need to use AC-21.
S..
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nayymha
if you have a new offer letter and new employer is willing to sponsor your h1b , then you can start working with new employer immediately after filing ( after getting receipt from USCIS )
since you are on H1B for that long , i dont think another approval is not a problem. but again it is a little risky , i did that twice with out any H1b approval issues though.
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gettinggc & greengreengree
1-is the H1B transfer is the same as getting new H1B as far as procedures and processing time?for the new employer does he has to do all the paper work as if it is an H1B visa?
2-while iam waiting for the H1B extension(9th yr) to be approved can i joine the new employer offering me the new (same title) job ? or this is risky?
PLEASE ADVISE ME WHAT IS THE BEST SCENARIO THAT I CAN FOLLOW, SINCE I HAVE PROBLEMS WITH MY CURRENT EMPLOYER AND I HAVE BEEN PATIENT FOR 9YEARS AND REALY I NEED TO GET RIDE OF MY CURRENT EMPLOYER AS SOON AS POSSIBLE?
AS I MENTIONED BEFOR MY I-140 has been approved long time ago(oct15,2006).
so i will wait your respneses please
thank you
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Nyya
Since you want to play safe by staying in H1B ( EAD can be renewed any time as per my attoenry ) , do you have an employer who could sponsor your H1B ? do you have a new offer letter with similar job description ? If so ,
1. Let new employer file for you H1B ( i heard Vermont center is taking time , but mine is california and i got mine in 2 months regular processing recently ) - H1 transfer is same as new H1 , just that u dont come under the quota and as a h1 b holder it should not matter for you whether it is new process or wat not.
2. As soon as your h1b petition reaches USCIS , you can start working . but some companies wait till H1B gets approved before taking the candidate in to job.
3. Use AC 21 as soon as you change.
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Issue being discussed: Approved I-140 is withdrawn after 180 days of I-485 filing.
2 scenarios:
1. Beneficiary sent USCIS an AC21 letter stating that s/he's invoking AC21 and a new contract of permanent employment with same/similar occupation.
USCIS action:
Possibly, your letter may get lost in the mailroom as USCIS usually does not accept additional evidence if RFE is not raised (i.e. there is no bar code in your letter for easy reference). In this case, upon review of the withdrawal of I-140, NOID will be issued.
In most cases, your letter will end up with your application and USCIS files it. IO handling the case review the case if AC21 applies and if the new employment is of same/similar occupation. If not satisfied, RFE is issued.
2. Beneficiary did not send an AC21 letter.
USCIS Action:
Upon review of the withdrawal of I-140, NOID will be issued. In some cases, IOs who are not familiar with AC21, will just send you a "Denied" letter.
Let's discuss withdrawal of I-140. When an employer withdraws I-140, it will cost some money. There are only 2 reasons I can see why an employer will spend money to withdraw I140. (1) Employer was really upset and wanted to get back at you. (2) Employer needs to withdraw your I-140 because s/he's filing for new I-140s for other beneficiaries and too many I-140 could hurt the employer's ability-to-pay and too many I-140 could also raise suspicion by USCIS which can trigger investigation. So employer is forced to withdraw I-140s of those who left (ported).
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nayymha
This is what I understood about your current status:
- Current H1 has expired and the 9th Year H1 Extn is pending through the current employer.
- You want to make use of AC21 & change employer and maintain H1 status by doing H1 transfer to New Company.
Given this I would suggest that you wait till the current H1 extension is approved, then change employer by applying for H1 transfer. If you apply for H1 transfer for the new company when you have a pending H1 extension for the current employer, the situation becomes complicated and your H1 transfer for the new company may not come through.
Remember H1 transfer is change of status based on a currently valid & approved H1 petition. When the petition pertaining to your current H1 status is still pending, I am not sure whether the transfer based on the pending H1 is valid or not, and how the transfer will be treated by USCIS.
I had come across a post on ImmigrationPortal.org a while ago whose H1 extension was pending with InitialCompany. With the pending H1 for InitialCompany he went ahead and took a new job with NewComp, the NewComp did a H1 transfer so he can join them. This H1 transfer took a long time, finally USCIS denied his H1 transfer for NewComp, and he became out of status.
However in your case you may be protected from status point of view, since your AOS is pending and you have Adjustee status. In worst case if you go ahead and take new job and file H1 transfer while InitialCompany's H1 extension is still pending, and let us say the H1 transfer doesn't come through, then you won't be able to work for them using H1.
Here is what I would do,
1. Wait till the H1 extension gets approved for current employer. (I know it is easier to say)
2. Go ahead and apply for EAD & Advance Parole right away.
3. After the H1 extension gets approved take the new job.
Remember you can take the new job either through H1 transfer or by using EAD. But looks like you prefer to do it through H1 transfer so to maintain your H1.
Also if I were you, I would definitely talk to a good attorney and get a paid professional opinion.
Good luck!
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Hi,
If you dont want to work for the current employer in present and future, then you have to apply for the EAD immediately. As soon as you get the EAD, find a new job with the same job duties and apply for the AC-21 with the new offer letter. By doing this, you will not be obligated to work for the GC sponsor. Remember, after getting the GC, you are supposed to work for the GC Sponsor(if you are going to work for him until you receive the GC card) for 180 days. If you are using AC-21, then you will have to work for the empoyer whose name is in your I-485 record at that time.
Please apply for the EAD asap. Have the trump card[EAD] in hand and you play any game.
S..
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Hi S,
This is nice info, actually i am in same situation and going to do the same thing.
I am on end of 3rd year h1b and labor approved in march 2007,140 filed regular nonconcurrent on june 1st (RD),485 and EAD filed in july 25th 2007, so far 140 not approved and got excellent and good designation job in another company with same job duties.
since 140 not approved there chance my current employer may do some thing whiel i change job, i asked new employer to transfer h1b now, i am joining new employer after completing 180 days of 485 pending.
I am really in dilema what happens if 140 revoked by current employer, now i will ask my new employer to file AC21 with all information supplied in this so that i may not be in much risk.
please advice i am doing correct thing??
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Hi,
I dont know if any one has used AC-21 when I-140 is pending. There are 2 issues in this scenario. i) the employer can withdraw the application ii) or, if there is a RFE on I-140, then the employer might not respond to the RFE. After waiting for a while, USCIS might reject your I-140.
In any case, your I-140 will be rejected ; so is your I-485. So, it is NOT advisible to leave the GC Sponsor until your I-140 is approved.
S..
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