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Change of employer in less than 180 days after I485 filing

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Posted by arath (144) 29 Mar 2009#1
I had to switch employer in less than 180 days after my I485 filing as my position was eliminated. I have not used EAD and I am still maintaining my H1B status. So far, I have not experienced any issue with getting EAD or AP. I got RFE for Birth Certificate and new G325 recently. I submitted the required docs and the case processing has resumed. My new employer's attorneys are now handling my case.

I would appreciate if any one in similar situation post their experience.
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Posted by KAKS (184)   06 Apr 2009#2
to arath:

arath,

What does that actual rule says. Need to be > 180 for 485 applied or Need to be 180 > 140 Approved. I have been told different openions. What are the items need to do AC21 ? do we need 140 approval copy as well ?.
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Posted by arath (144) 06 Apr 2009#3
to KAKS:

The I485 case must be pending for 180 days or more when you invoke AC21 under lengthy AOS-that's the rule. I know for sure you do NOT have to work for 180 days for the petitioning employer after filing I485, but your I485 should not be adjudicated in that 180 days timeframe. My I140 was approved before my I485 filing.
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Posted by suryav23 (215) 08 Apr 2009#4

The I485 case must be pending for 180 days or more when you invoke AC21 under lengthy AOS-that's the rule. I know for sure you do NOT have to work for 180 days for the petitioning employer after filing I485, but your I485 should not be adjudicated in that 180 days timeframe. My I140 was approved before my I485 filing.

to arath:



Certain lawyers interpret it as "you must have proof that you worked for petitioning employer for at least 180 days after the 485 received date. Especially if your 485 gets denied when employer revokes 140 - this is one of the proofs that lawyers attach to the MTR. Some lawyers say - "just your new employer letter and a few paystubs are enough". I have seen 485s getting reopened in both these situations.

Talk to a lawyer for opinion. This is a grey area.
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Posted by KAKS (184)   08 Apr 2009#5
to suryav23:

well.. i have applied for my 485 like 600 days ago...working with sponsoring employer still date, but my 140 got approved last December only, planning to change employer, thats why i raised this question. I am trying to make sure about job description to match with latest job profile. So figuring out best way to do this.
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Posted by suryav23 (215) 08 Apr 2009#6

well.. i have applied for my 485 like 600 days ago...working with sponsoring employer still date, but my 140 got approved last December only, planning to change employer, thats why i raised this question. I am trying to make sure about job description to match with latest job profile. So figuring out best way to do this.

to KAKS:



You are fine to use AC21. Don't stress about job description. Just run job descriptions through lawyers they will guide. If your ex employer revokes 140 then like a lot of people , you may get a denial on 485 and you have to file MTR to correct it.
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Posted by arath (144) 08 Apr 2009#7
to suryav23:

USCIS should not deny I485 upon revocation of I140. Here is the note from USCIS Ombudsman:

The Ombudsman has received inquiries noting that USCIS is not issuing Notices of Intent to Deny following a change of jobs, as required by the American Competitiveness in the 21st Century Act (AC21) and USCIS policy guidance, but instead is immediately denying pending Form I-485 (Application to Register Permanent Residence or Adjust Status) applications. Does this apply to you?

If a foreign national is: (1) the beneficiary of an approved Form I-140 (Petition for Immigrant Worker); and (2) has a Form I-485 pending for 180 days or more, s/he is eligible to change to a same or similar position. If the underlying, approved Form I-140 is withdrawn, and no evidence of a new qualifying offer of employment was submitted, then, USCIS must issue a Notice of Intent to Deny the pending Form I-485.

However, the Ombudsman understands that USCIS may deny the Form I-485 in cases of portability (the ability to change jobs) before first issuing a Notice of Intent to Deny in certain limited circumstances. These include, for example, where the beneficiary is ineligible for the benefits of the Form I-485 by statute, or the Form I-140 is withdrawn before the Form I-485 was pending for 180 days.

Do you think your case was erroneously denied? Then please forward the CIS Ombudsman a case problem using DHS Form 7001 with the subject line “AC21 Evidence of Immediate Denial.” Include a copy of your denial notice, detailed information as to the reasons for the immediate denial, and, if appropriate, evidence that you submitted a Motion to Reopen or Reconsider. If we consider your case to be an erroneous denial, we will forward it directly to USCIS for further review.


For details, use this site:

http://www.dhs.gov/xabout/structure/gc_1221837...
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Posted by arath (144) 08 Apr 2009#8
to suryav23:

This is in response to Chanduv23's comment:

This is NOT a grey area. The following memoranda clearly states that the case should only be pending beyond 180 days.

http://www.uscis.gov/files/pressrelease/AC21Int...

Question 10. Should service centers or district offices deny portability cases on the sole
basis that the alien has left his or her employment with the I-140 petitioner prior to the
I-485 application pending for 180 days?
Answer: No. The basis for adjustment is not actual (current) employment but prospective
employment. Since there is no requirement that the alien have ever been employed by the petitioner
while the I-140 and/or I-485 was pending, the fact that an alien left the I-140 petitioner before the I-
485 has been pending 180 days will not necessarily render the alien ineligible to port. However, in all
cases an offer of employment must have been bona fide. This means that, as of the time the I-140
was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have
had the intent to employ the beneficiary, and the alien must have intended to undertake the
employment, upon adjustment. Adjudicators should not presume absence of such intent and may
take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in
appropriate cases additional evidence or investigation may be appropriate.
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Posted by suryav23 (215) 15 Apr 2009#9

This is in response to Chanduv23's comment:

This is NOT a grey area. The following memoranda clearly states that the case should only be pending beyond 180 days.

http://www.uscis.gov/files/pressrelease/AC21Int...

Question 10. Should service centers or district offices deny portability cases on the sole
basis that the alien has left his or her employment with the I-140 petitioner prior to the
I-485 application pending for 180 days?
Answer: No. The basis for adjustment is not actual (current) employment but prospective
employment. Since there is no requirement that the alien have ever been employed by the petitioner
while the I-140 and/or I-485 was pending, the fact that an alien left the I-140 petitioner before the I-
485 has been pending 180 days will not necessarily render the alien ineligible to port. However, in all
cases an offer of employment must have been bona fide. This means that, as of the time the I-140
was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have
had the intent to employ the beneficiary, and the alien must have intended to undertake the
employment, upon adjustment. Adjudicators should not presume absence of such intent and may
take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in
appropriate cases additional evidence or investigation may be appropriate.

to arath:



I agree. But then why do people get denials on 485 when ex employer revokes 140 after 180 days of filing 485? It is still happening. I have also heard that Ombudsman is of no use at all. The only way to go about it is to file for MTR.

Ombudsman can say so many things but have things changed?

Sometime back there was a campaign where people sent letters through Immigration Voice requesting USCIS to stop these 485 denials. But have they stopped? We still see them.

I agree that it is the law - but are the USCIS officers following it? Remember the 485 denial happens ONLY when ex employer revokes 140 and the probability is very high when it happens. As far as I know, if people are able to show they adhered to AC21 - then these MTRs are successful.
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Posted by arath (144) 15 Apr 2009#10
to suryav23:

If anyone gets a denial, he/she can write directly to USCIS by citing/enclosing the memoranda and proof that he/she adhered to the norms. They can't set aside the law. Ombudsman is a secondary help, but many people have used Ombudsman help to speed up the EAD/AP approval. I am telling the real life experience. Ombudsman is there to make sure that there are checks and balances...We as human beings make mistake, USCIS employees are no exceptions. But if one's status is perfect, he/she can easily overcome these wrong denials either acting alone or using Ombudsman's help. Good luck to everyone.
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Posted by suryav23 (215) 15 Apr 2009#11

If anyone gets a denial, he/she can write directly to USCIS by citing/enclosing the memoranda and proof that he/she adhered to the norms. They can't set aside the law. Ombudsman is a secondary help, but many people have used Ombudsman help to speed up the EAD/AP approval. I am telling the real life experience. Ombudsman is there to make sure that there are checks and balances...We as human beings make mistake, USCIS employees are no exceptions. But if one's status is perfect, he/she can easily overcome these wrong denials either acting alone or using Ombudsman's help. Good luck to everyone.

to arath:



I have seen ONLY cases getting back to normal by filing MTR. Try writing directly to USCIS and see what happens.
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Posted by vj66321 (71) 20 Jul 2009#12

This is in response to Chanduv23's comment:

This is NOT a grey area. The following memoranda clearly states that the case should only be pending beyond 180 days.

http://www.uscis.gov/files/pressrelease/AC21Int...



to arath:



Hi Arath

Any comments on Question 12 in the pdf link you posted and its significance on Question 10 that you posted earlier?

Question 12. Can the 180 days that an I-485 application must be pending for I-140
portability eligibility accrue during a period when visa numbers are unavailable?

Answer: Yes. The fact that a visa number becomes unavailable after the filing of the I-485 application
does not stop the number of days required for I-140 portability eligibility from accruing.
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Posted by arath (144) 20 Jul 2009#13
to vj66321:

This is really to the advantage of the employee. If visa numbers are unavailable (India/China), USCIS can't deny AOS application later citing that they could not adjudicate the application within 180 days as visa numbers were unavailable.Visa number nonavailability does not stop the number of days required (180) for I-140 portability eligibility from accruing.

If you leave the petitioning employer before 180 days, but your case has not been adjudicated within 180 days, then you are good provided your new employer/any prospective employer is ready to do the AC21 portability.
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Posted by vj66321 (71) 20 Jul 2009#14

This is really to the advantage of the employee. If visa numbers are unavailable (India/China), USCIS can't deny AOS application later citing that they could not adjudicate the application within 180 days as visa numbers were unavailable.Visa number nonavailability does not stop the number of days required (180) for I-140 portability eligibility from accruing.

If you leave the petitioning employer before 180 days, but your case has not been adjudicated within 180 days, then you are good provided your new employer/any prospective employer is ready to do the AC21 portability.

to arath:



Hi Arath

Thanks for the clarification.

what is this 180 days rule then for?

I understand that only when the approved or pending 140 is revoked before 180 days since 485 was filed an applicants 485 will be denied.

apart from this there is no significance of the 180 days pending rule for 485.

Is this correct?
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Posted by arath (144) 24 Jul 2009#15
to vj66321:

That's correct. Back in 2000, they were expecting to adjudicate within 180 days, but not any more.
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Posted by isitworthit2 (7) 31 Jul 2009#16
to arath:

@ arath,

do you know about changing employers with I 485 pending >180 days and I 140 pending>140 days.

Per this murthy thread seems its possible?

http://www.murthaimmigration.com/2005/ac-21-gui...

any body knows about this please guide, I 140 is end less wait.
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Posted by arath (144) 31 Jul 2009#17
to isitworthit2:

It's not safe anymore to change employer before I140 is approved. If the employer withdraws or does not respond to RFE , your I140 will be denied. You can't port in that scenario.

On October 18, 2005, USCIS designated Matter of Al Wazzan, A95 253 422 (Jan. 12, 2005) as a USCIS Adopted Decision. This AAO decision established that a petition that is deniable (i.e., not approvable), whether or not the petition is denied 180 days or more after the filing of the adjustment of status application, cannot serve as the basis for approval of adjustment of status to permanent residence under the portability provision of INA § 204(j). An un-adjudicated Form I-140 petition is not made valid merely through the act of filing the petition with USCIS or through the passage of 180 days. Rather, the petition must have been filed on behalf of an alien who was entitled to the employment-based classification at the time that the petition was filed, and therefore must be approved prior to a favorable determination of a §106(c) AC21 portability request.

Here is the link to most recent memo on AC21:
http://www.uscis.gov/files/nativedocuments/AC21...
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Posted by sidharth13 (3) 06 Oct 2009#18
to arath:

Hi I have my interview on this Thursday early Morning in irving Texas Office with INS.
I guess my isse is that I filed my I485 with my previous employer while I was working with my present employer in 2007. My previous employer did give a letter stating he intend to hire me in future. BUT I never moved to that company and continued with my present job. My present job is exactly the same as I was working for the same client with my previous company. My I140 is approved and he did not withdraw. I am really scared that they would deny my I 485 application. Does anyone know the answer to this?
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Posted by sidharth13 (3) 06 Oct 2009#19
Hi I have my interview on this Thursday early Morning in irving Texas Office with INS.
I guess my isse is that I filed my I485 with my previous employer while I was working with my present employer in 2007. My previous employer did give a letter stating he intend to hire me in future. BUT I never moved to that company and continued with my present job. My present job is exactly the same as I was working for the same client with my previous company. My I140 is approved and he did not withdraw. I am really scared that they would deny my I 485 application. Does anyone know the answer to this?
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Posted by EB2portandLC (16) 02 Nov 2010#20
to sidharth13:

Hi,

Can you please update what happened to your I-485? Waht is your PD?
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Posted by sivan307 (3) 24 Aug 2011#21
to arath:

Hi Arath:

I am in a similar position. I filed my I485 in August 2007 & changed or moved to another company in November 2007. My I-140 was approved and the previous company is ready to support me. My I485 is current & I got an RFE asking me to submit a letter from your new prospective permanent employer describing your employment. This letter should include your job title, the specific duties of the position, the position's education and/or training requirements, the date you first began your employment and the wage/salary paid. can you please mail me what you did with your case. Thanks for you response & your time.

Kalyan
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Posted by gcwillcome (100) 02 Sep 2011#22
to arath:

As long your I-140 is not revoked then you should be fine. I saw few cases on the forum where folks have moved from the company 1 year after filing 485 but denied GC as later the original company withdrew I-140
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Posted by floydfan79 (8) 03 Jan 2012#23
to gcwillcome:

to Aarth/ Gcwillcome:

What was the outcome of your change? My PD is Sept'07 Eb2;Send papers to INS on 20/Dec/2012 and I am keen on exploring my options.

It would be great if you can share your experience/s on what happend when you filed I485 and switched roles to a new employers with I485 pending
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Posted by Heamdeme (5) 17 Nov 2014#24
I just received EAD/AP combo and is attempting to change job do I have to maintaining H-1status or new company can renew my EAD a.
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Posted by Heamdeme (5) 17 Nov 2014#25
Does my I-485 have to be approved before I am issued with EAD/AP.
.
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