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Transcript: Leaving an Employer after Approval of Green Card

Hi everyone this is Rajiv S. Khanna for immigration.com the Law Offices of Rajiv S Khanna, P.C.

I have been trying to get to this email now for a few days and it just keeps getting postponed. But this was from one of our community members who has a bunch of questions about what happens after  you get your green card  if you have done your AC21, not done your AC21 what to do, not to do to make the process of naturalization eventually smoother.

Question number 1.  How long must one stay with their employer after getting a Green Card?

Now we do have a very detailed video on this. If you go to my blog (http://forums.immigration.com/forumdisplay.php?253-Rajiv-s-Blog) you will get a video that talks about how long must you stay. I am not going to repeat that information here.   That information has already been covered.

He also asks along with a response to this question please provide any exceptions that might exist

I will give a very small summary. Let’s take the situation where no AC21 is involved. All we have is an employee who is staying with the same employer who sponsored their green card and today they got their green card approval.  When can they leave safely without negatively affecting their naturalization? 

And the answer is it is difficult to say depends upon the circumstance. There is no six month magic rule that people often talk about. But the way it works is green card is given based upon the premise that the employee is taking the job on a permanent basis. Permanent does not mean forever. Permanent simply means indefinite basis. And what is important is at least in my view that the intention or the intent at the time of getting the green card approval must be indefinite. So if I have already started packing my bags before I got my approval and I move three days later there could be some question about it.  Although  in the age of AC21 this question, did you really  have the intention of working here permanently, which in real  words means indefinitely - it has become very diluted because of the AC21.  At least that’s the way I would see it. I doubt very much government should make an issue out of it as long as you know the two jobs that you’re doing the one that you go from and the one you go to are substantially similar positions.

I would make an AC21 type argument saying that I basically ported over to a new job which was similar, if it ever became an issue during naturalization. But if you wanted to avoid all issues then I would say stay as long as you can, at least a few months after you got your green card approval and only then leave.

Let’s say in the AC21 context things become more complicated. This is the worse scenario. Lets say you moved job one to job two and before you could file anything with the government your green card  got approved, so what has happened is, you were hoping to use you AC21 but before you could  inform the government your green card got approved, so you never filed anything formally notifying the government  that  your changing  jobs.

Of course you are not required to under AC21 law. You are not required to file anything. But the fact that you did not file anything, makes it complicated because tomorrow when naturalization time arrives, the government could notice that you left the sponsoring employer ten days before the green card got approved or three days before the green card got approved.

So technically, you never took the job for which the green card was meant. Now again here the argument would be I was going to use AC21, this is a problem in the procedures, it is not something I have done wrong. The AC21 process does not really require government notification by or before a certain time when I am changing jobs and in fact it does not require notification at all, so how can you hold me responsible for something for which I am not even required to inform the government. So what should you do - just make sure you have some documentation that shows that the job that you moved to was substantially similar to the job that your moving from. I would strongly recommend getting a lawyer involved.  And keep that documentation for the next several years if it becomes an issue during naturalization you can provide the documentation and make the AC21 argument.

So the situation where you were doing AC21 and the situation were you are doing basically a job after getting the green card approval  are the same except were the green card gets approved while you are still  in the process of thinking of filing an AC21 level. Otherwise if you change jobs - let’s say you went to job one to job two and you filed a notification with the government and then ten days later the green card got approved now you are in the same situation probably as the guy who stayed at the same job and did not move jobs.

Number 2 question is.... Is there any documentation that one must acquire from his employer at the time of exit?

One point I want to make, what if you want to work and the employer says I don’t have a job for you. I think in those circumstances it is a good idea to have some kind of termination letter or some kind of email or an acknowledgment in the letter that we understand from the employer, that says we understand the you are agreeable to continue to work for us on a indefinite basis however because of XYZ circumstances or business circumstances we can no longer offer you this job. I think that would protect you to a reasonable extent.

There are cases that I have seen a few years ago I did some research on this issue. There were not a whole lot of cases but there were some cases where the government tried to take somebody’s   green card   and the court said: well if the employee is willing and the employer is not what can you do? We should let them keep their green card.

Documentation in cases where the employer is going to lay you off should be kept in the form of a termination letter and if possible some kind of acknowledgement that the employee is willing and able or even some kind of an email that you can send to the employer saying that I am willing to continue with this job on a indefinite basis, I was hoping it will be a permanent job but I understand that you don’t  have it any longer - something like that -  it shows that you have documented - I think we are paranoid, but I think it is better to be paranoid.

Number 3 question is:  How is the naturalization process impacted by exiting the wrong way? How does anyone find out about how you exited if let's say you apply for naturalization after 10 yrs?

They can not only refuse the naturalization they can even try to take away your green card. So one of the things you can do is, remember when you file for naturalization within 5 years of getting your I-485 approval, it is easy to reverse I-485 approval in the first five years, so one of the things you can do is file for naturalization after five years have passed. The law allows you to file 90 days before the five years are over I would say do the naturalization application ten days after the 5 years from the green card approval are over.

That is another thing you can do. That way if they want to come after your green card they (USCIS) have to go through a longer process rather than just revoking your I-485 approval. One concrete suggestion is apply for a naturalization a few days after the five years from the approval of your green card are over.

How does anyone find out about how you exited if let's say you apply for naturalization after 10 yrs?

If you apply after ten years they probably cannot find out. I think the form N- 400 only asks for your employment history for the last five years.

Question 4 :  Can the IO (I guess what you mean is the adjudication officer)involved in the naturalization process reach out to previous employer for any reason? If so how does one prepare for that contingency since the employee (and maybe his boss) might not be with the same employer at the time.

Normally no I have never seen it that happen in over two - three decades of my practice. And of course you point out that by that time maybe the boss and everything is all changed and the answer is yes.  That is a practical difficulty. In fact I was reviewing a case from Seattle, Washington State Federal Courts, where the judge had pointed out that when the government creates a situation where it is impossible for an employee to go back and fulfill the requirements of the evidence the government is asking for e.g.: where there was an I-140 revocation and the employee had already left the employer and now they are trying to go back and revoke the I- 140. He cannot get the documentation that they want. They are trying to revoke the I- 140 several years after it was approved. It’s impossible for the employee to get the information that they are looking for. I think something like that would work for us.

I am not that concerned about the adjudication officer reaching out to the old employer it would be just impossible for any employer to keep the records that long anyway, if it is several years down the line.

Number 5: Can any of the employers that one has worked for before getting the GC approval negatively impact one's naturalization process? Any safeguards that you could recommend

No ... I cannot think of anything, except if there is an active fraud that you have committed and that fraud is against the US government in any way for e.g.:  giving a false degree certification etc then you can have a problem but otherwise there is no issue and during naturalization they don’t go to the old employers.

Number 6: If a previous employer gets into legal issues because of their business practices can that negatively impact one's naturalization process?

Again that depends, if there was fraud in your green card approval that can definitely become an issue. If it becomes part of the record government could actually unravel the I-140 and try to unravel the green card and then of course that affects your naturalization as well. 

Number 7:  What documentation does one need to hold on to for naturalization purposes like paystubs, offer letters etc?

I just described that documentation. Paystubs is always a good idea as we are dealing with some of the cases where USCIS is trying to revoke I-140s for fraud and we are able to prove that there is no fraud because the people that they are coming after were actually working. Here are the paystubs, here are the bank deposits slips that show that this money was not only received from the employer, but also deposited.

Number 8: Can negative information or any information posted on the Internet (social media for example) be used against someone in the naturalization process?

Not unless it was the kind of information which would bar you from getting naturalization such as - it is a crude e.g.:- but let’s say you are trying to solicit a minor for immoral purposes. That could become a problem. Because remember good moral character is part of naturalization- moral character is implicated, at least in my mind when there is something negative being done against US government or the laws of this country. It can become relevant, the information on the social media, but not just because you are an obnoxious person or you are in a bad mood and you have written something bad. It has to be something more than that. I get this question all the time what if I am in bankruptcy does that affect naturalization.  No it does not. Only time you could have a problem is if you skipped on your taxes but even there - a proper bankruptcy discharges some kind of claims and if those claims are discharged they cannot be held against you.

Number 9: Can a disgruntled employer or colleague negatively impact

Again unless you have committed a fraud I don’t see why.

Number 10: General wisdom on what NOT to do after getting one's GC and before citizenship?

Make you file the AR-11. Try not to get arrested. Lead a good life. Other than that I have nothing else to recommend. Most of our clients get a list of things they should be doing. Filing AR-11 is important. Within 10 days of moving address from one place to another you should file AR-11. You can do it online.

I hope this helps. Good luck people!!!

A Continuing Legal Education seminar delivered by Rajiv S. Khanna. This information is relevant for lawyers and business/HR management professionals. This seminar was presented for American Law Institute/American Bar Association and Lawline.

Transcript: Employment Authorization (EAD) for H-4 Holders Proposed

I was asked to comment about the proposed rule that would allow certain H-4 holders to get employment authorization. What I have opened on the screen is the current status as of December 16, 2012. This rule is currently being reviewed by the Office of Management and Budget’s sub-office OIRA, which is the Office of Information and Regulatory Affairs. The idea is that under Executive Order 12866--I am not giving you too many details just trying to keep it to the minimal--regulations before they move forward beyond a certain point, they need to be reviewed by the White House. It is not something that President Obama does himself, of course--you all know that--it is people who are experts in federal regulation within the White House under the office of OMB—OIRA. They are the people who are charged with the responsibility of making sure the regulations are sound in terms of policy, in terms of time, cost, compliance, etc.

I want to point out a few things. If you look at this, it says current action is NPRM (Notice of Proposal Rule Making). That means once this is okayed by the OMB, a Notice of Proposed Rule Making will be put out in the Federal Register. If you look at this right here, it doesn’t have a FR (Federal Register) citation right now, because it has not yet been published. So once it is approved and NPRM (Notice of Proposed Rule Making) would be published in the Federal Register, which basically means the government will formally notify everybody that we intend to make a rule and if you have any comments about that, let us have them. There is a lot of variation in regulations and how they are made. Let me get to that in a second.

But I want to point out this abstract to you. What does it say? It says we are going to allow those H-4 holders to get work authorizations whose husbands have crossed over six years of their H-1 and now they are in extended H-1 beyond six years, either three-year period or one-year period. These two periods are referred to as Section 104C and 106A. These two periods depend upon when the labor certification was filed. If the labor certification was filed a year ago, anyone who is on H-1 six-year term can get their H-1 extended on a year-to-year basis. So that year-to-year extension is tied in with your labor certification date. So, first anniversary of the labor certification allows one-year extension.

The second method of getting H-1 extension, which is the three-year method, is if your I-140 is approved regardless of when your labor certification was filed. So, if you are in any of these two categories and exceeded your H-1 and you’ve now extended your H-1 beyond six years, your spouse would be then entitled to get work authorization. I think it is very fair and, as the abstract notes, this is to encourage professionals with high-demand skills to remain in the country. Think about it. Somebody who is on H-1 has been here for six years--they have done everything by the book, they have done it legally--there is no reason for them to have to wait any longer for their spouses to work. It is just highly unfair, and we have been pointing this out--not only us but the entire set of stakeholders, the community, lawyers, agencies that are involved, non-profits that are involved in the process. It’s been pointed out to the government that people who have been waiting for their legal immigration for years--I mean typically what is the life-span—let’s just take for example, India or China. You enter USA typically on a student visa. You do your Master’s for a couple of years or your Ph.D. and your Ph.D. sometimes for five or six years. Then you get into H-1 six years after that. You will get this benefit. So that’s like 15 years for many of you, but definitely no less than six years.

If, on the other hand, government were to legalize folks who are here illegally. I am not saying they should not be legalized; I am saying that we’ve got to have some equity here and this is one step--very, very small step--towards equity. I personally feel like in L-2, H-1 visa holders, their spouses should be allowed to start working on the day they enter USA. Why is this distinction made between L-2 holders and H-4 holders? L-2 holders are allowed to work day one when they enter USA. There is no philosophical or policy difference between L-2 and H-4. In any case, we will take what we can get for the time being. At least this is a step in the right direction.

Now what happens after this process? Well, you know, some of my colleagues are predicting it could be as little less, as you know, three months or six months. I don’t think it is that simple, because remember typically what happens is first a notice of the rulemaking is provided or the rule itself can be provided as a proposed rule and then public is invited to comment for 30 to 60 days. Then the government goes back and analyzes those comments. This whole process can take a while. Then they can issue another revised version asking for more comments. Sometimes the comment period can be extended to 180 days. Then, on top of that, and during the Congressional review time, which is while the regulations are still not implemented, they are finalized. Congress can come back and overrule the regulations. It’s difficult for them to do that at this point of time, but you know all these things are still uncertain so by no means can we say that this is certain to be implemented and when it is certain to be implemented. But it appears that for the first time in the last four or five years, some formal acknowledgment has been made by the Obama Administration and some acknowledgment has been made that there is a set of legal professional workers in the United States who have been much ignored.

Feel free to send us emails through the Contact Us form on our website. Send us an email if something is unclear. I will be happy to address as much of it as I can.

I also wanted to add one thing as an afterthought. You do know that, of course, once you file your I-485 Adjustment of Status, your spouse on H-4 is entitled to their EAD. This is an addition to that right. So even if you are--obviously I think it is quite clear, but just in case it isn’t--even if you are not in the I-485 step of the process, you can still get employment authorization for your H-4 spouse if this rule were to be implemented. I just thought I will add that. Thanks.

I have received a couple of questions from a client and a member of the community.

First--What is the exact process?

Well, the process is quite variable. From here on, a lot of things can be done differently. In fact, the government can publish a rule without giving a notice and comment period, if they want, because if the rule is urgent enough or they want it to be implemented--or it is not necessary or useful to have notice and comment--it can be implemented without notice and comment. It is unlikely. So the process is actually quite amorphous. It can have many variations. It is very difficult to pinpoint exactly what is going to happen. But a lifetime once it moves out of the OMB is typically about 180 days or six months or so. Another great variable is how long does the agency think the notice and comment period should be kept open. Like I said, sometimes, it can be as much as 180 days.

An interesting question was asked--Does this have to go to the Senate or House for approval?

The answer is no. This is not a law--this is a regulation. Regulations are dealt with entirely on the side of the administration by the government. It does not go to the legislature. The only way the legislature can overrule it is if both the sides—the Senate as well as House of Representatives--passes a resolution overruling the regulation, and the President signs it. If the President doesn’t sign it, then I guess what they have to do is override his veto, which is very, very difficult--if I remember correctly with a two-third majority of the two houses--so that is very unlikely to happen. I guess that should also clarify things for you folks a little bit more. Keep the questions coming. I will answer them as quickly as I can.

EB3 to EB2 conversion

EB3 to EB2 porting

EB3 to EB2

 Good afternoon, everyone.  This is US Immigration Attorney, Rajiv S. Khanna for immigration.com, the Law Offices of Rajiv S. Khanna, P.C.

 This is a community information call.  It is not intended to create an attorney/client relationship.  Whatever we say here remains merely an informational conversation.

 This is a follow-up to the August 30 Community Conference Call.

 We are talking about issues related to converting from EB3 to EB2.

 What is this idea of EB-3 to EB-2 conversion?

 Most of you know that EB-3 for countries like India and China are very backed up and EB-2’s are better.  Actually, for the rest of the world also, EB-2 is much better.  So sometimes even though you have obtained a Labor Certification (PERM certification) and then you obtained an I-140 approval or you are on the path to that, you feel, “Oh, maybe I should have filed an EB-2, or maybe circumstances have changed and now I can file under EB-2.”  So, in those cases, when we get the priority date from an EB-3 case and put it on top of an EB-2 case, thereby essentially converting an EB-3 case to an EB-2 case, we refer to that loosely as a conversion.  Really, it is not a conversion.  It is a new case filed under EB-2, and essentially the priority date is being transferred.

One relevant question here.  Can priority dates be transferred if an employer revokes my old I-140? 

 The answer is “Yes.”  USCIS has said that they will allow transfers (carryovers) of priority dates even if the old I-140 is revoked, as long as the revocation is not for fraud.

So, when you do this analysis of EB-3 to EB-2 conversion, the first question you want to ask yourself is “Am I currently qualified for EB-2?”  

Why is this question important?  Remember a Green Card is for a job in the future, which means today I am working as a programmer; tomorrow’s job could be a project manager, and even though I continue to work as a programmer for the next three years or until I get my Green Card, it is not a problem.  The future job of project manager can be given to me once the Green Card is approved.  Or before.  That is up to the employer, but it is not required.  So the idea is a Green Card is for a future job.  However, you must be qualified for it on the date you filed the PERM application. 

So let’s say you have three years of experience after Bachelor’s Degree, and you know that the Green Card will take three or four more years, can you file under EB-2 today?  

No, because you are not qualified.  You may be qualified in two years or three years, but that does not mean you can file an EB-2 right now.

So are you currently qualified for EB-2?

One of the recommendations I have is for people who are not qualified and don’t have the five-year experience or have a three-year Bachelor’s Degree, you may consider doing a Master’s Degree online.  I have a video on this.  It’s on my blog.  It tells you how to choose an appropriate on-line Master’s Degree program that is accredited and that will help you get into EB-2.

Here is a link to the video and a transcript:

Accreditation of distance education for EB-2

The next question you want to ask yourself is Do I want to process my EB-2 case with the same employer who petitioned the EB-3 or some other employer?

It is a little bit easier to do it with another employer, but given the choice between going with a totally new employer and going with an employer who is totally, solidly behind me, who is going to pay the attorney’s fees.  This is a considerable expense.  If they’re on my side and they want to cooperate fully with the law, then of course I would stay with the same employer.

The next question you have to ask yourself is Do you need a promotion--present or future?

What does that mean?  What if you have three years of experience before you joined this employer, you want to process your Green Card through this employer, and you’ve got two years with this employer now?  Now you’ve got five years but two years are with the same employer through whom you are going to file your EB-2 who also did your EB-3 earlier.  In order to use that experience, you must be offered a job which is more than fifty percent different than what you were doing before.  Let’s say the old job was all coding and the new job is mostly providing project management, so that’s a promotion and then the experience that you have gained with this employer can be applied towards your EB-2.

I hope I’m making myself clear.  Most of you already know the concepts, but still I want to put it out there so that you are sensitized to the issues.  You can ask your lawyers the right kind of questions and make sure your case is being properly approached.  These concepts are difficult.  They can be complicated.  Even we can make mistakes.  Lawyers are not perfect, as all of you know.  Be educated and take your lawyers’ help in making these decisions.

It is very important to have a bona fide job.  

What does that mean?  If you have a three-employee company and the employer says, “I will you a promotion.”  That’s a little difficult to establish and believe.  It can be true but, if you are a 300-employee company or a 3,000-employee company, probably a better case for a promotion, but of course it all depends upon the facts of the case.  I’m just giving you an example.  This does not mean smaller companies cannot process promotion cases.

How do I eliminate the risk of problems of EB-3?

What does that mean?  I already have my EB-3 approval.  I don’t want to do anything that’s going to mess that up.

What you can do is, you can make sure, taking the example of the programmer under EB-3 who wants to go for project manager under EB-2.  If your EB-3 was for a programmer, make sure you continue working as a programmer until the I-140 for the new case is approved.  So don’t change jobs, because, if you take a promotion to project manager, then the Government could question, "This guy has already taken a promotion, then why would he come back to the lower job which is the Green Card job?” Do not take a promotion until the I-140 for the new case is approved.  That would be important.

What if I used AC-21?

This is a very tricky situation. You are one of the lucky ones who’s got your I- 485 pending and I-140 is approved under EB-3.  You changed from IBM to Sun Microsystems.  You changed employers.  Your job was programmer.  Now, for AC-21, the job that Sun gives you has to be the same or similar to the job IBM gave you.  So it’s got to be a programmer or thereabouts.  Now the problem here is this.  In order for Sun Microsystems to process your case under EB-2, they have to assess whether they have to promote you so that an EB-2-level job can be given to you or can they use the same job.  This can be tricky.

So for AC-21, the key question is can the same job which was the subject of AC-21 be used to file an EB-2 case?  

Tricky question.  Depends upon the facts of the case.

Now, to the posted set of Questions from the Community Conference call of August 30th.

First Set of Questions

Question:  I have an I-485 pending on EB-3.  I have been with my company for 12 years.  They are planning to apply for EB-2.  Same company.  I have a Bachelor’s four-year engineering degree from India.  Can I qualify for EB-2?

 Answer:  Yes if the job that is being offered to you is sufficiently dissimilar from the EB-3 job.

Question:  Is there any audit risk?

 Answer:  No.  Filing for a conversion (again, I am using the term “conversion” loosely) does not create any additional audit risks.

Question:  If we apply in EB-2, will my EB-3 application processing stop?

 Answer:  No, it does not stop.

Question:  What happens to the EB-3?

 Answer:  It goes on.  Don’t take up a promotion.  I just mentioned that.

Question:  My wife is working on EAD.  Will her EAD be affected?

Answer:  No, not at all.  No problem at all.

Question:  If I get EB-2 I- 140 approved, can I use EB-3 priority date?

Answer:  Yes.

Question:  At that time, will I get another EAD from EB-2 processing?

Answer:  No.  What you do is, you take the EB-2 I-140 approval and put it on top of the existing I-485.  So your old I-140 gets knocked out and the new one now sits on top of your I-485.  So I-485 does not need to be re-filed.

Second set of questions

Question:  He is preparing for his I-140 for EB-2.  Can this be done premium processing?

Answer:  Sure.

Question:  Do we have to specify the pending EB-3 case information?

Answer:  You will have to, because if there is an I-140 approved or pending under the old case, you have to mention that.  There is a question I think on the form.

Question:  Should we do it during the I-140 filing?

Answer:  Yes.  On the form itself, there is a question.  If there is only a Labor Certification pending, there is nothing to say.  If the I-140 is either pending or approved from the old case, you have to say it in the new I-140.

Question:  When I started filing for my EB-2 case, my attorney mentioned not to file AC-21. 

Answer:  I think that’s a personal choice.  I like to file AC-21’s and then I like to assess whether I would need a promotion case or I can go ahead with the same AC-21 job for EB-2.  I would like your lawyer to decide that as I do not know the case.

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 immigration.com, 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.

FIRST SET OF QUESTIONS

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.

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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:

http://forums.immigration.com/entry.php?57-Laid-off-Now-what-Updated-26-...

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.