AC21 Green Card Portability after 180 days of I-485 Pendency - Part 2

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AC21 Green Card Portability after 180 days of I-485 Pendency - Part 2


15th August, 2012.

Good morning, folks.  This is Rajiv S. Khanna for, the Law Offices of Rajiv S. Khanna, P.C.

This is in continuation of the Community Conference Call in which we specifically wanted to discuss AC21 issues, because there’s a bunch of them that bear recording in a separate treatment because a lot of people face the same kind of issues and there’s a lot of doubt about how to handle them.

I have two members of the community on the phone with us.  It is understood that this call is being recorded and will be made publicly available, and everyone is fine with that.

This is just an informational call.  You are not hiring us.  We are not agreeing to represent you.  Neither party owes the other anything.


Company A applied for my labor, a I-140 and I-485, and I got my EAD through that company in EB-3 category.  I switched to Company B, invoking AC21, and have been working there the last two years.  Company C applied for future employment. 

First thing I want to make clear for everybody is that, under the Yates Memorandum of May 2005, it is absolutely okay for you to do an AC21 based upon a future company’s job application. 

So let’s modify your example a little bit.  Let’s say you are working for Employer B, and Employer C has started your Green Card as a future employer.  Let’s say Employer C gets your I-140 approved.  

Can you now file I-485 through Employer C even though you are working for Employer B?

The answer is, “Yes,” of course, based upon a genuine desire to join them, Employer C, when the Green Card comes through or sometime before. 

Can you after 180 days without ever joining Employer C, join an Employer D or continue working with Employer B?

Yes.  You can do an AC21 without ever joining the future employer.  There has been some confusion about this issue, but Yates Memorandum does say that very clearly.  This is a memorandum from May 2005.  It very clearly says that it is okay for you to port from a future job without ever joining that employer.  So, as a principle, that’s clearly understood.  Now looking at your situation specifically, Green Card EB-3 started with Employer A, moved over to Employer B, and you’re on AC21 and Green Card is done through Employer C under EB-2 category from an earlier date.  So your EB-3 date is 2006, but your EB-2 through Company C is 2004.  Now to make things kind of interesting, Company C got closed, so that company is no longer in operation.  Now, again, as a matter of general law, what happens is a couple of things are clear.  USCIS has the right to revoke an I-140--any I-140--where the company who’s sponsored that I-140 ceases to do business.

How does that correlate with AC21?  

It correlates as follows:  If an employee has already used AC21 and ported using that AC21 and then USCIS revokes that I-140 for the company having ceased to do business, I don’t think AC21 is going to be affected.  Normally, if you stayed with the same company, Company C, or you did not do a porting of Company C’s I-140 approval and I-485 pendency, you would be out of luck because they can revoke the I-140 as soon as the company stops doing business.  But, in your case, they have not revoked, so the I-140 is still very much alive.  However, what you can’t do is, you can’t file an I-485 based upon Company C’s job offer, because the company no longer exists.  You could say, “Wait!  I already have an I-485 pending.”  You do. 

This is a gray area of the law that nobody can really answer for you.  

In your situation, can you use the future AC21 portability so that you can get EB-2 date of 2004 with any employer?

I am not sure about that, but one thing I am sure about is that you can get the 2004 priority date and take it to any employer.  So what are you doing?  You are doing a mix thing.  This is very sure.  This you can do.  So far as what USCIS has said, this is what it said. 

Even if the I-140 is going to be revoked (It’s not revoked, but even if it were revoked), that 2004 date is yours to keep.  So, you are getting the date from Employer C, but you are getting the AC21 from Employer A. 

So we know very clearly that you are entitled to EB-3 2004.  So, you are entitled to EB-3 2004, no question. 

Are you also entitled to EB-2 2004?

That’s very doubtful.  Why?  Because, even though the 485 that was pending does not have to be refiled when you file an EB-2 based case through Employer C for 485.  However, if the company had still been in existence, and you come to me and say, “Rajiv, I want to get my 485 converted to EB-2 application.  Basically attach it to the I-140 through Company C.”  I would have said, “Let’s get an offer of employment from Employer C and we can send that.”  I would have taken that, and I would have told the government to convert your pending 485 to a petition of EB-2 under Company C.  But the problem is that company is no longer in existence.

Is that a required step?  

Not really.  Sending a letter in from Company C.  Is that a required step for converting your case to EB-2, 2004 AC21?

Not really, but I think it can be said that it is.  So, we are clear you are entitled to EB-3 2004 date because of Company C’s I-140 approval from 2004, but it is unclear whether you are entitled to EB-2 2004.

Can my EB-2 be ported?

What you are saying is, “Can I port my EB-2 job to my current company?”   There is no other way to port.  You can either take the priority date or you can take whole Green Card.  

Can I port the whole Green Card?

You cannot move that or we’re not clear if you can move that, because we don’t have that one step of the job offer being submitted to the USCIS. 

Had the company been in existence, and I could have gotten a genuine job offer from them, and I could have submitted that, then you could have ported that job anywhere or that Green Card anywhere, including to your current employer.

Can you do it anyway? 

I don’t know the answer to that question, because that is a gray area of law.  Nobody can, at least I don’t think anyone can positively say, this is the way it’s going to go.  

Is it worth trying?  

I don’t know the answer.

How far are you from your priority date in 2004 EB-3?  Is that too far away?  

August, 2002.

It might be worth trying an EB-2 AC21, but here’s what you need to be careful of.  When you port a job from one place to another, from one employer to another, what you are telling the government is, this job is same or similar to the job that was the subject of the Green Card proceedings.  When you went from Employer A to Employer B, you told the government that, “Mr. USCIS, the job that Employer B is giving me is same or similar to the job that Employer A gave me under the Green Card.” Same or Similar.

Now, when you do an AC21 portability under the EB-2, you will be making same argument for the EB-2 job.  You will be saying, “Mr. USCIS, Company B is offering me a job that is same or similar to the job described by Company C in their Green Card petition.”  As we have discussed, the two jobs are basically similar.  I want a lawyer to look at it and make sure that they are similar.  That’s the only thing I am concerned about.  I don’t want you to push for EB-2 and then have questions raised about EB-3 also.  I think you are reasonably safe if the jobs are same or similar.  Because for the same job description, one company can have one requirement, another company can have another requirement.  We care only that the jobs are the same or similar.

This itself is a big problem.  I want to make a general comment about this.  Nobody quite knows what same or similar is.

USCIS did a whole shebang of trying to clarify this.  Actually, they have not clarified anything.  They have only made things more confusing.  It appears that, if the salaries are too far different, they can start questioning it.  It appears that if the jobs are totally dissimilar, of course, they are not going to allow AC21.  

But what is similar?  

Nobody knows.  So let your lawyer take a look at it if you don’t want to take a chance on this.  AC21 is a one-shot deal.  If the 485 gets denied, we will have a lot of problems.  The only option at that point would be to get another job and try to reopen the I-485, which becomes very complicated.  So somebody should look at the job, make sure that the AC21 is applicable to the EB-2 job without hurting your EB-3. 

In general, what is the difference between filing I-485 through a future employer and just doing portability for a future employer?

Let me explain what the difference is.  Normally, in order for you to do portability, you have to file a 485, the 485 must have been pending for 180 days, and the I-140 must have been approved.

What are we clear about?  

We are clear about the timing of the 485 in general.  We know, if an I-140 is filed in January, and an I-485 is also filed in January at the same time, concurrently, the I-140 gets approved in July, which is more than 180 days later.

Can you port now? 

The answer is yes, because the moment the I-140 is approved, we look back and see, has the 485 has been pending for 180 days?

If the I-140 gets denied, then you can’t port.  We know that once an I-140 has been pending 180 days, whether or not it was after the I-140 approval, we don’t care.

Now let’s take your case specifically.  What is the difference between I-485 filing and AC21 filing?

In normal cases, in order to take advantage of AC21, you have to file the 485, have the 485 pending 180 days, and have the I-140 approval.

Does it have to be an I-485 with the same employer from whom the I-140 got approved?

That’s where the problem is.  I don’t think it does.  You have a 485 pending, and you have an I-140 approved through Employer C.  Do they have to be in the same package? I don’t think they do.  But the grayness in the situation comes because we don’t have an offer letter that connects anything to anyone.  But, even though the I-140 was approved, the company went out of business.  

Now, can we do really do an AC21? 

I don’t know.  It’s a gray area.  I would push for it.  I would try it, and maybe I could make USCIS see how technically this is okay, but I don’t know for sure if it’s coming.


Second Set of Questions

My I-140 was approved through my current employer, I am completing my six years in September on H-1B, and they filed for my three-year extension.  If I am laid off on H-1B, is there any grace period to find my next job?

There is no grace period.  I have a lengthy article on my blog on this issue:

If I find a new job, my new employer does the H-1B, and I can get the three-year extension based on the I-140 approval.  Does the new job have to be similar in role that I have right now?

That’s a very interesting question, but answer is, luckily for you, “No.”

There are several benefits flowing from I-140 approval:

1)    You get to carry your priority date forward.  When you carry your priority date forward, does it have to be same in a same or similar profession or job as described in the Green Card?  No, it does not.  To carry the priority date forward, it can be a totally different job and it can be carried across categories, EB-1, EB-2, EB-3.  It doesn’t matter.

2)    The second benefit is AC21, If 485 has been pending.  Then you have to have same or similar job.

3)    The third benefit is H-1 extension.  For H-1 extension, an approved I-140 must exist and continue to exist when you get the H-1 approval.  Approval of the H-1 does not have to be in the same or similar job for which the I-140 was approved.  It can be totally different.  It can be different job location, different region, different employer, different job.  The benefit of the H-1 extension beyond six years does not require that your job must be same or similar.  Only AC21 job requires same or similar.

If I have to go on H-4 for some time, then I find a job, the same I-140, and my company doesn’t revoke the I-140, can I use that I-140 approval to get a three year extension on the new employer, if I find them later on?

Theoretically, the answer is yes, but practically, this is what I would worry about. 

I don’t mean to scare you.  It’s a good idea to think of everything that can go wrong and kind of be ready.

There are cases on the books—I’ve seen them, I’ve read them--that say for an I-140 to continue to be valid, the job must not have been extinguished.  So, what if you file the H-1 and USCIS says, “Aha.  You are on H-4.  That must really mean that the job is extinguished, the I-140 job.  So, we are going to revoke the I-140”? 

It is very unlikely that they will do that, extremely unlikely, but it can be said that it’s possible.  It may not be probable, but it’s possible.  My argument would be, “As long as the I-140 was surviving on the date I filed the H-1, you have to give me my H-1.”  So, in short, I think you can, but be aware that it could be an issue.

If I find a new employer and I get a three-year extension based on current I-140 approval, does my new employer have to start my Green Card process immediately or, since I have three years with him, he can wait to file after one year?

They should start as early as possible.  But, normally, once USCIS has given the H-1, they will not take it back, even if the I-140 is revoked normally.  So, I feel that it would be reasonably safe to wait a year.

The priority date can be carried over without any problems?

Absolutely.  That USCIS has made clear.  Even if they revoke I-140, they let you carry the priority date forward.

Good luck, guys.  Thanks for being here.

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