AC21 AOS Portability

J1 overstayed by years, married to a greencard holder

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.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Questions on AC21, EAD, losing job, etc.

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).

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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I-485 pending and after 6 months laid off

I-485 pending and after 6 months (so AC21 portable). Laid off. H1-B revoked but I-140 not revoked. Since it was very hard to find a job in US, I found a job outside the US temporarily in Sept 2009 and stayed there till now. Can I still enter US on AP?

The way I see it, until and unless your AP or 485 is revoked, it is legal to use both.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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AC21

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. http://forums.immigration.com/blog.php?u=1

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Current USCIS procedures for PD transfer and AOS

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.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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AC-21 Ability to pay

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.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Changing jobs multiple times after I-485 pending

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.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Can AC21 be done for a future job?

I was laid off by my last employer in early May. Now I have a question regarding answering for the potential I-485 RFE requesting for employment verification letter. I was told that a future similar position will be enough for satisfying the I-485 employment letter request. Is that true? Can you confirm on that?

That is correct for AC21 portability. But USCIS can ask why you are not working for that employer right now. If you have a good, truthful answer for that question, you should be fine.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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I-485 AOS Pending, Employer's Bankruptcy

My company (an LLC) is filing Chapter 11 Bankruptcy to restructure debt. They are planning to emerge out of Bankruptcy filing as a "C corp" company. We were told that there wont be any interruption to the day-to-day business. 1. How does it effect my H1B visa and GC application (filed I-485 - pending)? 2. Do I need to re-apply (transfer) H1 B to the new company or can I send an amendment? 3. Do I need to file AC 21 portability or send an amendment to pending I-485 application?

1. If your job remains the same and regular salary continues to be paid I see no issue for H-1 or green card.

2. An amendment should be filed, though it is debatable if it is required.

3. In my view, AC21 port is easier.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Important questions on H-1, AP and Travel

1. I am on H1B. It is valid until 2010. Since I am hearing that there are many queries on the port of entry, do ou think I should travel back to the country with valid AP or H1? Which one is more preferable? 2. Considering I have valid H1B until 2010 and valid AP (though I don't have AP at the moment). I plan to stay on H1 as long as I am waiting for my greencard. But for travel purposes I use AP. Does coming back into the country using AP will change my status from H1 to EAD? 3. How long is AP processing taking these days? 4. All my co-workers are getting huge queries on H1 extension or H1 transfer. Is AP processing also getting queries? Should I even start AP processing? 5. Please list out all the documents that I should carry while traveling?

1. I think I prefer AP. Read the Cronin memo and you will understand that even if you enter using AP, you will be considered to be on valid H-1 as long as you were maintaining H-1 status before you left. Search the word "Cronin" on my blog .

2. No. See answer above.

3. It is impossible to predict times. Plan for a six-month turnaround.

4. Do not be scared of queries. We are yet to lose an H-1 case. I am not aware of any queries on AP.

5. Advance Parole and Passport.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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