AC21 AOS Portability

AC21 is the name given to a law that provides for several matters including the ability to change jobs while an employment-based green card is pending (I-485 AC21 portability) and to start working for an H-1B employer as soon as transfer petition is filed with the USCIS.

EAD-AC21-Self Porting

Question details

I have EAD/Pending AOS. I ported to employer B based on AC21 in 2008.
Now i am considering a great opportunity:
-Joining S corporation in Florida
_I will receive similar hourly rate as prior employer
-similar job
-i will receive 40% of profits on top of salary
-the new corporation will be my fututre full time job
Does the new corporation have to be huge with lot of finances for me to use the AC21?
I have valid EAD can I join as a partner in the S corporation in Florida?
Any thoughts things i,ve to carefull with?

Very little is clear about self-porting. Read the Yates Memo of May 2005. It seems you should be fine as long as the jobs are same or similar, but like I said, not much is known about this issue.

Guestbook Entry for Chanchal Kokkuvayil, United States

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I want to thank Mr.Khanna for answering all my questions to my satisfaction. Appreciate the fact that he read through the questions and understood the situation before hand so that during the call he was able to explain the options available to me and the impact of each one of them. Without hesitation, I will be hiring Mr.Khanna and his firm for all my immigration needs. Thanks, Chanchal

AC21 and losing job

Question details

I am EB2 priority date Sep2005. I had lost my job in Apr 09. I started working on Dec09 with another company similar job description, in same geographic location and with 15% higher salary than labor approved. I was out of job for almost 8 months.My old employer has assured not to evoke approved I140 (more than 3 years since I 140 is approved)

I have few questions:

1.Shall I file for AC21?
2.is it advisable to send copy of current paystunb with AC21, If yes how many months?
2.Is it okay to file AC21without paystub for around 8 months?
2.If I dont file for AC21, will there be an issue travelling on AP at POE?

AC21 should be filed. The fact that you were out of job for 8 months is irrelevant. As long as the jobs are same or similar, you should have no issues.

J1 overstayed by years, married to a greencard holder

Question details

I came to US in 2004, overstayed my J1 visa by 3 years and got married to a greencard holder in 2007. My I-130 was approved in 2008 . Is it possible to adjust status when my visa number becomes available. I have read on different sites that I'm not eligible since I have not maintained lawful status during my stay. Are there any loops?

Unless your spouse becomes a US citizen, nothing can be done as far as I can see. If you had a 2 years HRR, you have bigger problems.

Questions on AC21, EAD, losing job, etc.

Question details

1. On 5th year of H1. Single employer till date from day one of H1. Same employer has sponsored GC applications, I-140 approved, I-485 filed in Aug-07, EAD and AP approved and successfully renewed. What is the real value of CIS issuing EADs to people like me? Does this allow me in addition to the current job I have, take up ‘any’ other job using EAD? Does having an EAD permit me to work multiple jobs?

2. Does having an EAD permit me to work multiple jobs?

3. If due to economic situation my employer (who has sponsored GC) has to lay off people and I am let go am I out of status? Reading through your blogs I understand that since I-485 is pending, one is NOT out of status even if NOT working – is this correct?

4. How long can one stay without working (no job) while I-485 is pending? Will not working be seen as ‘abandoning the GC application’?

5. Do we have to let CIS know that one has been laid off? If we have to do this wouldn’t CIS see that the job for which GC is being processed is no longer available and immediately terminate the I-485 application?

6. Do I lose EAD and AP?

7. My wife is working using her EAD…will she lose her EAD?

8. Is it possible to invoke EAD and take up similar job if one can be found? Is there a time period within which this has to be done?

9. Is it possible to invoke EAD and take up ‘any’ job if a ‘similar’ job is unavailable? If this route is chosen I understand that Labor Certification & I-140 may have to be re-applied, but would the priority date remain where it was originally (as obtained in original GC application) OR would priority date change to the date when new I-140 is filed?

1A.  Yes.

2A. Yes, but you will then lose H-1 status (which can be revived by reentering USA using an H-1 visa during the life of your H-1 and taking up single-employer job with the H-1 sponsoring employer – not a difficult task, usually).

3A. Correct. You are in authorized period of stay. That has been explained in my blog.

4A. You can stay as long as CIS does not send an RFE or a Notice of Intent to Deny requiring you to prove similar, alternate employment (AC21 portability – also explained in detail on my blog).

AC21

Question details

1) My GC is into EB3 Catergory. 2) I have approved Labour. 3) I have approved I-40 and priorty date is July 2008. 4) As I am into EB3 Category and so cannot file I-485 till priorty date. My Questions is can I use AC21 to change job, what are a)pro's b)con's. Can I use my PD if I use AC21. If company revokes my I-40, do I need to start Labour again and full process from start.

AC21 can never be filed before I-485 has been filed pending 180 days. I have fairly detailed discussion on these issues on my blog. https://immigration.com/blogs

Current USCIS procedures for PD transfer and AOS

Question details

Recenlty we submitted my NOID response for my 485. Today called USCIS customer service about my status of my 485.They said its PreAdjucated waiting for Visa number.But they mentioned I have 2 I-140s in my file
1.EB3 PD,2002
2.EB2 PD,2005.
They said which date first current then that 140 will use. I am not sure about EB3 140( i don't have any info about this 140).B'cos i filed my 485 with Eb2 140.My case is Ac-21 .So i wasn't with both employers now.
Is that above statement correct? Do i need to do anything now or just stay calm until either of EB category comes current? Please advice.

I would probably do nothing. Under current USCIS procedures, they scan an applicant for all existing I-140 approvals. You are then automatically assigned the earliest PD you are entitled to.

AC-21 Ability to pay

Question details

I have changed employer using AC-21. I-140 appoved - Jan'09. I-485 filed July 2007. PD June 2007, EB-3 ROW. My previous employer will not withdraw my approved I-140. I am current working on EAD with my current employer. My current employer filed for Bankruptcy under chapter 11. Do you think I might have an issue of ability of pay when I renew my AP and EAD. Thank you in advance for your help.

Normally, ability to pay is not an issue for AC21 employer. But these are unexplored situations. Tough to predict.

Changing jobs multiple times after I-485 pending

Question details

I have a question regarding changing jobs multiple times after I-485 pending >180 days. Last year I quit from the company that submitted my 140 petition and joined another company. After that move I received RFE from USCIS then submitted AC21. I attended an interview this March and passed; I received a letter afterwards saying my case as "waiting for visa quota". In April I was laid off by the new employer but found another job with similar duties in June. I haven't notified USCIS about this for about 2 months now. Do I need to do that? Please help!

I see no restriction in law preventing multiple job changes. In most cases, I like to inform USCIS, but speak with your lawyers.