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

I wanted to talk with you folks about requirements for naturalization for people who get their Green Card based upon employment and then have to stay outside USA for a certain period time.  Many of the criteria here are common to people who have obtained their Green Card through any other method such as through marriage or through political asylum.  Pretty much, it is the same law.  But I want to focus primarily on people who have gotten an employment-based Green Card, because those are the inquires I receive the most and I don’t want to miss anything, because N-470 typically does not apply to people in non-employment situations, except for missionaries.  I’ll get to that in a second.

So, first of all, let’s look at the requirements for somebody to get naturalized in USA.  What are the normal requirements?

Right here.  You must have received your Green Card approval five years ago.  Actually, it is a little bit more complicated than that.  You can apply 90 days before your 5th year anniversary of Green Card.  In case you got your Green Card through marriage, then it is three years, when you are married to a US citizen.  After that, you must have stayed in USA for at least 30 months physically.  2 ½ years.  Half the time.  You should not have visited outside USA for a year or more.  If you go outside USA for a year, your Green Card is gone.  It’s difficult to get it back.  Not impossible, but what you will have to do if you end up staying for a year or more outside USA is, you will have to go to the consulate and convince them that you have not abandoned your US permanent residence, your Green Card, and you can do that by a process called SB-1 (Returning Resident Permit).  I’m not going to go into that in too much detail, but just to give you an idea.  If you are outside USA for one year or more, for naturalization purposes, you have to start your five years all over again, except in the following two circumstances, I-131 and N-470, which are these.  I’ll get to that in a second as well.

So, physical presence of 2 ½ years, no visit outside USA for  a year or more, any visit outside USA for six months or more but less than one year, you have to explain.  Why were you gone that long?  So this is for people who have not filed these special forms called I-131 and N-470.  I also want to make a quick note about I-131 and N-470.

What is I-131?

It’s the same form you used for filing for Advanced Parole when you are in need of Advanced Parole during your Adjustment of Status.  It’s also the same form used for protecting your Green Card through a process called Reentry Permit.  So you use your 1-131 to apply for a Reentry Permit, which is typically given for two years at one go, and you can get that extended, depending on the circumstances.  Basically, the I-131 tells the government, “Look.  I am not abandoning my permanent residence.  I am just going outside temporarily.”  Once you file the I-131, things change for naturalization purposes.

Did you stay outside USA for one year continuously?

If you did, ordinarily, if you had not filed I-131, you would have to start five years all over again, if you have not lost your Green Card.  You could have even lost your Green Card.  But, if you had filed your I-131, you don’t lose your Green Card, and you also get a respite of one year.  When you come back, you have to establish your US residence for four years and one day instead of five years and apply after you have accumulated physical presence in USA for 2 ½ years.  It gives you one year off from those five years.  That’s an added advantage of I-131.  It protects your Green Card as much as humanly possible.  There’s more to it.  I would always advise you to talk with a lawyer before you take any steps of going outside USA for an extended period of time.  It also shortens the time of five years that you would have to otherwise accumulate for naturalization.

Did you stay outside USA for one year continuously after I-131?

If the answer is no, then these same requirements that apply to normal people will apply to you.  Physical presence of 30 months, no visit outside USA for a year or more, six months or more will have to be explained.

Then comes N-470.

N-470 is one of those tricky strange forms.  It’s applicable to a certain group of people.  I would strongly encourage you to read up on the instructions on N-470.  They’re pretty informative.

The way this works is, if you’re going to work for a US company abroad and, again, I am talking about employment context.  There are other reasons N-470 can be filed.  Read the instructions.  What  N-470 does is it allows you to stay outside USA for a year or more and not have a break that will restart your five years all over again.  Let me explain.  Let’s say I file I-131 and N-470.  I do it together.  Usually, in most cases, we do both forms together.  When you file I-131 and N-470 together, let’s say you stayed outside USA for 1 ½ years.  Normally, when you come back, you have to start that five-year period all over again, because you were outside USA for one year or, in case of I-131, you have to start the four year, one day period all over again.  But N-470 says, “We forgive your stay outside USA for one year or more for naturalization purposes.  We don’t forgive your requirement of 30 months of physical presence.”  But it stops the discontinuity that would normally restart the five-year clock or the four year, one day clock after having stayed outside USA for one year.  It is a clock-stopping device.  It is a very good device.  One problem though.  N-470 has one strange requirement.  You must have at least one year anywhere during your stay in USA as a Green Card holder where you did not travel outside USA for even for one day.  Makes no sense to me.  I don’t know why it is there, but it’s there.  Go figure, but keep that in mind.

I hope this has been informative.  I had told one of our posters.  Somebody had posted a comment on immigration.com wanting to know more about this.  And I told him that I’ll record something, but I’ve had some technical issues.  They’re working on our website developing some new material that will make it easier for us to post our videos.  I hope to be doing this a lot more, and I’ll continue to do so.

Thank you for being here.  I hope to speak with you very soon.

Impact of I-140 Revocation

13 July 2012

9.05 Mins

I have been meaning to share with you a few things about what we are noticing in the last few months, a whole flurry of I-140 denials, intents to revoke.  It appears that USCIS has gone back and revisited even approved I-140’s.  What happens is, in these cases, an employee who has nothing to do with an employer’s wrongdoing, if there is any wrongdoing in fact, gets stuck.

We represented a company—we’ve done this for three or four companies, but one company in particular comes to mind--they bought out another company—I think 100 or so employees--and I was actually involved in the merger and acquisition, and I suggested that they should escrow some money just to make sure that, if something goes wrong with the immigration compliance, we would have attorneys' fees to fight the problem.  And it did work out because, in fact, there was a problem.  What happened was the guy who sold the company had some issues—apparently, he had several companies—and he had some issues that were not brought to light until this company that hired us started filing their cases.  When they started filing I-140’s, USCIS came up with fraud allegations against the guy who sold the company.  What happens in these cases is that the employees could lose the right to AC21 if the revocation is for fraud.  They could lose their priority date if the revocation is for fraud.  And they could lose their right to extend their H-1’s if the revocation is for fraud. So the employee is the one who gets hurt the most.  When we got retained--there were about 20-25 cases--we went in and argued it out with the government and, happily, all cases were approved.  Each set of circumstances is unique.  Sometimes we can get approvals and sometimes we cannot get approvals.  This narrative doesn’t mean we’re always going to get approvals.  I just want to talk to you guys and explain to you that this is happening.  Don’t think that just because you have an I-140 approval, you’re good.

This morning, as I was going over the content on immigration.com, I noticed a comment on our forums.  This person said this:

180 days on EAD will get over next week and I plan to go on AC21.  Sponsoring employer is being inquired into for some fraud.  No one knows exactly what’s going on.  He’s going over to a new company. 

These are his four questions.  I think it’s relevant to the whole community.  That’s why I’m recording this.

Will this fraud affect my I-485 application?  Will I get an RFE?

First of all, no one can predict whether or not you will get an RFE.  Whether the fraud will affect your I-485 depends on whether or not the I-140 is considered to be fraudulent.  The biggest problem in these cases is because the I-140 is the employer’s application.  The employee does not get a notice, so before you know it, you get a Notice of Revocation of I-485 because, without your knowledge as an employee, the I-140 has been revoked.  This is very unfortunate.  It’s a good idea for those of you who are moving or who want better information or handle on your I-140 to stay in touch with your lawyers.  Make sure they know where you are and make sure they send a copy of the I-140 RFE. In Virginia, I am required by law to allow equal access to both the employer and the employee.  So, if there is an RFE, by ethical obligation, I am required to give a copy to the employee as well.  I am not sure if the Bar would frown upon redacting certain portions that might be very specific to the employer’s tax history, etc.  But normally, we need to give you enough information so that you can protect yourself, so that should be the ethical obligation for all lawyers.  Therefore, you should be able to get some information if there is an I-140 revocation notice or intent to revoke issued by USCIS.  The problem is, if the I-140 gets revoked for fraud, everything goes away--your right to carry forward your priority date, your right to get an  H-1 extension,  your right to do an AC21 successfully--all of that goes away.  However, if the employer is willing to appeal, then while the appeal is pending, you can go ahead and keep getting your H-1 extensions.

Does it matter where you are shifting using AC21?

If this is a question related to geographical location, it does not.

Does a full time contracting offer matter?

You should not have a 1099.  You should be on a W2.

Of course, there is a language in the Yates Memorandum of May 2005, which is the only definitive memo on AC21, which talks about doing an AC21 transfer over to a company you yourself own, but there’s a whole slew of issues connected with that.  Actually, I think I have a lot of information on my blogs on this.

Does a big or a small company matter?

In my view, it does not matter.  Not for AC21 purposes.

I want to add that there was a case recently from a federal court—I have the name of the case in my records-- where the court was quite offended by USCIS coming back after several years and revoking an I-140 that had already been approved.  I think there are some really tricky legal problems with USCIS revoking cases that have long been settled.  Be that as it may, all I can do is sensitize you to the issues and concerns. 

Feel free to bring up whatever you have in our next free community conference call.  Information about our free community conference calls is on the immigration.com website.

Good talking with all of you.  Good luck.

Maintaining Green card

By

Rajiv S. Khanna

July 20th, 2012

15.55 Minutes

I wanted to record a video at the request of a community member who is a senior, a parent of a US citizen.  They come and they visit.  A lot of people are in this situation.  When parents come and visit, are they required to continue to stay here for a certain time?  How does the naturalization process work?  It is a difficult topic because it has many components.

Let me start by giving you an overview of the way maintaining permanent residency in the USA works.  Let’s begin with this flow chart.  What does the law require if you have a green card?  The law requires you to have a permanent home in the USA.  There is no artistic definition of what “permanent home” is.  If you in fact live in the USA, your permanent home is USA.

I’ll get to the specific questions in a minute.  I just want to talk about the law in general.

Your permanent home must be USA.  There is no artistic definition of permanent home.  The simple question is “Where do you live?”  If the answer is, “I live in USA,” you’re okay.  That’s the first step.  But what about taking a trip outside USA?  Is it a one-time trip or infrequent trips or do you go every year for a couple of months or a month?  That’s not a problem.  But what if you are going every year for five months, frequent trips that you repeat every year?  At some point, USCIS can raise a red flag on that.  Because the question is, are you really living in USA or are you really living in your home country?  If there is a pattern, even though the pattern involves travel of less than six months in a 12-month period, but it’s a pattern that has existed for a long time, a few years, they can raise an objection, and they can ask you where you live.

One thing I want to add.  If a green card holder shows up at the US airport, the government has to let them in, even if they are claiming abandonment.  Government has to let them in and they can lift the green card and they can say they are taking away your green card, and you have to report to immigration court on a given date, but it’s not like they can you turn you back at the airport.

Going back to what we were talking about, frequent trips or a pattern of trips.  What if my trip is less than six months?  Usually, there is no problem.  Any year you want to go out for five months or 5 ½ months, it’s not a problem for your green card, not a problem for your naturalization, unless there is a pattern.  If there is a pattern, then they can start creating issues.

What if the trip is less than a year but more than six months?

That can require an explanation at the airport.  There is actually a technical term called “entry.”  A green card holder who has been gone less than six months is not really seeking entry.  They are not considered to be subject to a bunch of technical requirements that people would be if they were gone for six months or more.  

If you are gone for more than one year outside USA without reentry permit, if you don’t have a reentry permit form like I-131 and N-470?  These are two forms that help you preserve your green card.  N-470 helps you preserve your stay outside USA for naturalization if you are engaged in missionary activity, working for the US government, or involved in advancing international trade on behalf of a US company.  It doesn’t apply to many people, especially to parents who are coming or are retired or if they are just coming for a few months in a year.  For them, it doesn’t really apply.  But a reentry permit protects you, not a hundred percent, but to a certain extent against an allegation by the government that you have completely abandoned your permanent residence.  If you are outside USA for more than one year without reentry permit, your green card is gone.

What to do if you have been outside USA for more than one year without reentry permit?

There are only two choices.  You can apply for a returning residence visa through the consulate in your home country.  It is also called SB-1 visa.  There, you have to explain in quite some detail what the genuine reason was for your inability to return to USA within one year.  Then it is discretionary upon the consulate whether they are convinced by the genuineness of your response or not.  If you have been outside USA for more than one year, your green card is gone.  If you can get a returning resident visa (SB-1 visa), then you can come back.  Of course, your son or daughter can apply for a green card again.  If you unfortunately have a green card through a brother or sister, that will take 13 years again.  That’s the way you can get your green card back.

The next question I have been asked a lot.  Yesterday, no less than three people asked me the same question.

What if I surrender my green card?  Will I easily be able to get certain visas like B-1, B-2 (tourist, business), F-1(student), and J-1 (exchange visitors)?

The answer is we don’t know.  On the one hand, the fact that you have given up your green card should be considered the ultimate proof that you don’t want to live in US.  But government can sometimes ignore that and consider that to be actually a negative point that you had a green card and maybe you are trying get back into USA.  Sometimes you can have a problem getting B, F, or J type visa.  Of course, for certain kinds of visas for which immigrant intent or intent to live in USA is not an issue, like H-1, H-4, L-1, L-2 visa, you would not have any problem getting those.

That’s what I wanted to cover in the way of the general law.  Now I want to show what USCIS says about this.  I extracted this from the USCIS website.  USCIS says if you do anything which makes you removable, for example, if you commit a crime, etc., which is not a problem for us.  But then they talk about abandoning permanent residence.  If you move to another country intending to live there permanently, one of the things that USCIS looks for, not just in case of parents, in case of any immigrant who is outside USA, if you leave your job and get another job outside USA, that is a sure indication that you have abandoned your permanent residence in USA.  Also, if your family is living in your home country and not USA, then USCIS can consider that also to be evidence that you have abandoned your permanent residence in the USA.  If you remain outside the USA for more than one year, I’ve already covered that.

If you fail to file an income tax return while living outside US for any period or you declare yourself a non-immigrant on your tax returns, you will lose your green card.  But what if you are not required to file tax returns?  That’s one of the questions the gentleman who sent me an email asked me.  Am I required to file an income tax return?  I don’t know where that observation from USCIS comes from, because, the way I see it, if IRS does not require you to file a tax return, you shouldn’t be filing one.  There is not a problem.  I looked up at the IRS publication P-4588.  The part that I highlighted.  If you have a US green card, if you are a lawful permanent resident, even if you are a US green card holder for only one day in that year, you have to file income taxes, except when your gross income from worldwide sources is less than the amount that requires a tax return to be filed.  If your income is below a certain level, I do not see why you should be required to file a tax return.  In my view, the information on USCIS website is a little misleading.  It does not provide for those cases where a tax return is just not required to be filed.  That’s the way I see it, but I’m no tax expert.  I would readily admit that.  In my view, it is not required.

Now, going through the questions that our respected community member has. 

Can the green card holder travel to their native country for 160 to 170 days?

As I said, as long as you are maintaining your permanent home in USA.  The question is what is a permanent home for somebody who lives a few months here and few months in the home country? Difficult for me to say.  Maybe a separate bedroom for you in your children’s house, if you’re living with a child, maybe your bank account, or if you have your driver’s license.  Anything that a person who is living in USA permanently would do will strengthen your case.  If you have a pattern of going back to your home country for a few months every year and it is 160-170 days, which is just short of 180, it appears to USCIS that maybe you are not really seriously maintaining your green card.  That’s what I would be worried about.  However, if you have other indications that you are actually living permanently in USA.  Again, this is not a term of art.  There isn’t anything here that I can say that is very scientific or artistic or esoteric that I can explain to people.  It is just common sense.  Whatever a normal person does.  By normal, I mean you, for example.  What would you do, sir, if you were living in USA?  What kind of amenities would you create for yourself?  Would you rent your own house?  Buy your own house?  Whatever it is that you would normally do.  If you follow that through, I think you have a fairly good chance of surviving any challenge by the government that you have abandoned your green card.  By the way, for naturalization also, if the green card has been abandoned at any point in time, there can be no naturalization.  

Question #2.  99 percent of parents are dependent on their children.  Is it necessary to file income tax returns?

In my view, no.  If IRS doesn’t require you to file tax returns, I don’t see how USCIS can.  In my view, you should not have to file tax returns, if, under the rules of IRS, you’re not required to.

May you file no taxable income?  I don’t know how to do that.  You have to ask your CPA.

Will it affect for filing the naturalization process?  I haven’t done extensive research on this issue of tax returns, but, just from what I saw in a couple of minutes of review, it didn’t appear to me that a tax return should be required.  If you want to be even more sure, what you can do is contact your Congressman’s office here in USA and just tell them to find out the answer for you definitively.

I am unaware of the source of this requirement.  I don’t see where USCIS says you’ve got to file taxes.  What if the law doesn’t require you to?

So, go to your Congressman’s office.  They might be able to confirm.

I don’t want to spend a whole lot of time trying to resolve this issue, which is, in my view, a marginal issue. 

Third question--Can they continue to hold green card for seven to eight years and, in the ninth year, file for naturalization?

The answer is yes.  As long as you meet the requirements for naturalization and you have not abandoned your green card, you are okay.

That’s pretty much all I have to add to this.  You folks with follow-up questions, go ahead and send us emails or join our community conference calls.  We’ll take it up there.

Thank you, everybody.

This video is available on immigration.com at Requirements for Naturalization in USA (Forms I-131/N-470) 

AC21 Green Card Portability after 180 days of I-485 Pendency - Part 1

Recorded 27 July 2012

Hello, everyone.  I want to talk today about AC21.  There is a lot of mystery, a lot of mystique.  People have been asking questions for a few years now, and I’m still not done answering all of the questions.  So I thought I’d just record this for you and hopefully I’ll cover most of the issues that I remember.  In case I am missing something, let me know.  Of course, this is just the first part.  I intend to do several parts on this AC21 issue.  If you have any follow up questions, you are welcome to send us an email through the Contact Us form on www.immigration.com

What exactly is AC21?

AC21 is an abbreviation for a law called American Competitiveness in the Twenty-First Century Act.  I think the law was enacted by Congress back in October 2000.  So the law has been in effect for fully 12 years, and USCIS has still not given us regulations.  It’s very important to have regulations.  If you do not have regulations, we have only the bare bones of the law.  In IT industry, you think of it as having just a high-level design.  We do not have any user interface, we do not have any functionality program, we do not have the code, and we do not really know what the law will really look like in implementation.  The last comprehensive interpretation of AC21 was back in May 2005 through something called the Yates Memorandum, given by William R. Yates, which basically answered a lot of questions, but there are still a lot left unanswered.

What is AC21’s effect on H-1?

Basically, this allows you to get H-1 extensions beyond six years; it allows you to change jobs while the H-1 transfer is pending.  I’m not discussing this now.  I want to focus on Green Card.  I will address H-1 later.

AC21 effect on Green Card

Every EB-2, EB-3, and some EB-1 holders can change to a same or similar job as described in their Green Card with any employer anywhere in USA.  You are not geographically restricted.  If your green card was filed in Colorado, you can move to California or Washington, DC.  What is required is the jobs be same or similar.  

Your I-140 has been approved, and your I-485 has been pending for 180 days.  How are the 180 days counted?

180 days are counted based upon the pendency of I-485, not necessarily after the I-140 has been approved.  Let me explain.  Let’s say I file your I-140 and I-485 today.  After 150 days (five months), your I-140 gets approved, and now your I-485 has been pending 150 days.  We only need 30 more days to reach to that 180 day count.  In other words, we don’t have to start counting from the date the I-140 has actually been approved.  We count based upon how many days the I-485 itself was pending.  Once the I-485 is approved, then, by operation of law, we only count what has been remaining of 180 days.  Once again, I file today, both the I-140 and I-485.  After 150 days, I-140 gets approved.  Now I have to wait only 30 more days.

What if I leave before I-140 is approved?

Mr. Yates made it quite clear that, as long as I-140 was approvable when filed, even if you left, it’s not going to affect the merits of your AC21 claim.  Once again, if the I-140 was approvable when filed, even if you left, it’s not going to hurt the merits of your AC21 claim, but there is something to worry about.

Does the employer still have the intent to hire me back and I to rejoin?

In other words, what triggers AC21?  It is not the approval of the I-140.  What if my I-140 and I-485 were not filed together, as happens to a lot of people.  Of course, if they were filed together, then remember the 150 days example I gave.  Even if you left, the I-140 gets approved.  We only have to wait those extra 30 days, and we are comfortable in knowing that we are covered by AC21.  But what if my I-140 has been filed, but not my I-485?  Then I have to do this analysis.  Does the employer have the intention to hire back and I to rejoin them?  If so, when my priority date becomes current, I can file for I-485 based upon the letter given by the employer for whom I used to work.  If you leave before your I-140 is approved and before the I-485 is filed, you’ve got to have a way to file an I-485 through the employer who has sponsored you, who initially filed for you, who petitioned for you.  That means there must be an intention to hire and rejoin.

What if I leave before 180 days are over, but the I-140 is approved?

Now the hypothetical is a little different.  Remember the 150 day example.  What if I leave on the 150th day, my I-140 is approved, but I am still 30 days short of the 180 days that’s needed for the I-485 to be pending?  This hypothetical assumes that both the I-140 and I-485 are concurrently filed.  If they were not concurrently filed, then of course the previous analysis--the intent analysis--if the employer has the intent to hire me back, then I can file an I-485.  Remember, you can always carry the priority date forward.  That’s what we’re talking about.  Once the 1-140 is approved, the priority date can be carried forward.  We’re talking about AC21.  That’s a different law altogether.

If I leave on the 151st day, am I okay? 

You are okay as long as USCIS does not start questioning you on the 151st day.  Mr. Yates said this.  If you have left before 180 days and if you do not have a RFE response due back asking you about your job before the 180 days, you are okay.  If I got an RFE before I left and the RFE response is due before 180 days, then the chances are I cannot use the AC21.  I can only carry forward my priority date.  If you don’t get this, join me in a free community conference call, and I’ll run over your scenario step-by-step.

What if I leave before 180 days are over, but the I-140 is approved, I-485 is pending, and I left during the 151st day?  As long as an RFE response is not due before the 180 days, you are okay.  It’s fairly safe to assume that you are going to be fine in any of these scenarios where you’ve left before the 180 days are over, because, typically, the RFE itself gives you a few weeks to respond and, by that time, if you’ve thought it over, you can respond with a new job offer. 

What if I’ve left, but I don’t have a job for some time?  Let’s say you left on the 150th day.  Your I-485 pending and I-140 approved, or both are pending, what if you do not have a job for some time?  Same analysis applies as long as an RFE response is not due before the 180 days are over.  If it’s due before the 180 days are over, you could have some problem.  But, if it is not due, you should be all right.  If you do not have a job for some time, that’s okay, too.

May I port from a future job?

This is a very interesting analysis.  The Yates Memorandum clearly says yes.  So I am working for employer A  on a  H-1, and employer B  has filed for my green card as a future job or, maybe even if I used to work with employer B, then I left them, and they continued by green card.  It becomes a future job, then I am not working on that job.  You can actually file an I-140 and I-485 for a future job and still do an AC21 to any job.  You actually never even have to join the future job as long as your intentions were clean when you filed the I-485.  So yes, you can port from a future job, and you can even port without ever joining that employer.

May I port to my own company or business?

This is a question I’m asked quite a lot.  The answer is yes.  It is not forbidden.  Why the double negative?  I’ll tell you what I’m worried about.  When somebody ports to his or her own company or business, one of the most important things is, remember I talked about jobs must be same or similar?  This is where the problem occurs.  Let’s say your title was Biochemist or IT Engineer or Software Engineer or Systems Administrator.  When you start your company, you kind of become the CEO or Manager.  That’s not acceptable.  That could cause the problem.  But what if you have a company your wife is managing, and you’re just an employee?  That’s okay.  That can be done.  So when you port to your company or business, make sure you discuss this in detail with your lawyers.  Make sure you understand what you’re allowed to do and what you’re not allowed to do.

The same or similar analysis is very confusing.  We don’t have clear understanding.  The closest you are to the jobs being the same, the better off you are.

What do I mean by the same job?  

What if I was a Java Developer in one job and a .Net Developer in another job?  I think that’s okay.  This is my interpretation, because you’re still a developer.  Nowhere does the law say you must have the same technologies covering both jobs.  In my view, you are okay even with different technologies.  I’ve never had this view supported by the government, so consider this my guess, something I would be comfortable arguing in court if I have to.

What is required to do an AC21, and what does it involve?

There is no law on what you are required to do.  If you do not inform the government, you are not breaking any law.  But in most cases, it is a smart idea to inform the government.  Why?  Because if you are subject to AC21, you ported over, and then the old employer revokes the I-140, for somebody who has successfully ported, that does not have any effect on them.  The old employer can revoke the I-140.  You are still entitled to your AC21 benefits.  However, I have seen cases when an old employer revoked the I-140.  Instead of sending the usual RFE, USCIS sends a Notice of Intent to Revoke the I-485, and if you do not get it in timely manner, sometimes you could have an issue.  Then you have to file a Motion to Reopen.  It becomes messier.  You might not have work authorization, because your I-485 has been revoked.  That’s why, further down, I am going to advise you to keep your H-1 active in most of these cases.  Even though the chances of something going wrong are extremely small, they do exist, and I like to cover every possible bad scenario that I possibly can.  What you have to do is have your lawyers write a letter to the government saying that you are using AC21 and porting over to same or similar job.

May I transfer more than once using AC21?

Yes, you can do 20,000 change of employers.  AC21 does not say you can do it only once.

Should I keep my H-1 active?

I just spoke about that.  I think you should as far as humanly possible.  If, for whatever reason, you cannot, it’s okay.  You’re still reasonably safe as long as you keep track of your ****, but, where possible, keep your H-1 active.  It’s so much better for you.

What are the dangers in using AC21?

One thing that has always bothered me is, if for some reason your I-485 is denied, for example, you are out of status and not even knowing you are out of status and your I-485 gets denied, you lose your AC21.  This is something I’ve seen come up.  An employee was placed in California where the LCA was approved for Colorado.  That’s a violation of the H-1 laws.  Most employers don’t know that.  Unfortunately, some of my colleagues I’ve seen poorly advise that you can just file a new LC.  That’s not true.  H-1 amendments are needed when the move is beyond normal commuting distance.  Inadvertently, you have fallen out of status for more than 180 days.  Now your I-485 is deniable.  You did not know that.  The next thing is you’re getting a denial of I-485, and you are losing your right to AC21.  That’s one major danger that I see all the time.  Other than that, everything is covered if you can keep you H-1 active and, if you cannot, I feel that your risks are minimal.  We have filed hundreds, if not thousands, of AC21 cases.  I have not had a single case run into any kind of problem. 

Sometimes, you can be interviewed.  Does your risk of being interviewed increase because you’ve filed an AC21?

I personally don’t think so.  I don’t see any indication of that.  But, certainly, I’ve heard people say that that’s what happens.  I don’t feel that’s a major danger.  I don’t think that happens that frequently, but keep that in mind as well. 

Folks, I hope I was able to give you some useful information.  I know it’s kind of confusing, but we’ll keep talking about it until things become clearer.

Thank you for listening.  Good luck.

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.

_______________________________________________________________________________________________

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.

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.