AC21 AOS Portability FAQs

Technically, you can be unemployed while on EAD/AOS/I-485. But if you are benched by the employer who petitioned for your green card, that casts doubt on the availability of the green card job. That can lead to revocation of the green card process unless you change employers using AC21 portability.

Q. Can I re-capture the unused time (time stuck in India for almost 3 years) beyond my first 6 years of H1-B with this new firm/petitioner?
A. Yes, you can.

Q. If yes, can I port my old I-140 (& old priority date) to the new H1 petitioner after coming to the US? What is the porting time frame after coming to the US? Is Premium processing available for porting old I-140 (& priority date) to the new employer?
A. Priority date can be ported for sure if your I-140 stayed approved till at least 17 January 2017, when there was a change in regulations in favor of the employees. Earlier, the situation was uncertain if the employer withdrew the I-140. Under the current regulations, that is not a problem for priority date transfer.

Q. Since my priority date is current, I wanted to know if my new employer can file for AOS upon my arrival in the US?
A. Adjustment of Status (AOS) is not possible. The new employer will have to start the green card all over again, carrying the old priority date.

Watch the Video on this FAQ: I-485 AOS filed - Maintaining H-1B status after getting EAD/Changing jobs after I-485/Being unemployed/Start own business, etc. (Filed for I-485, EAD, AP along with EB-2 to EB-3 I-140 downgrade)

Watch the Video on this FAQ: Pending I-485 Petitions and 180 Day Portability Rule

Video Transcript:

1. I think you should be comfortable as long as your I-485 revocation does not get triggered off.

2.  Well, first of all when you are outside the United States you do not need an EAD. Second as long as you have a permanent job offer it shouldn't matter whether it is the same employer or some other employer as long as you are protected by AC21 portability. Hence you have a lot of flexibility. Talk with your lawyers, make sure if a Supplement J is available now. The fact that you are working from outside the United States is completely irrelevant. FAQ in detail...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch the Video on this FAQ:

EB-1C International Managers/Executive Green Card portability

Video Transcript:

1. Even if there were a substantial difference in the salaries I don't think it is a major issue. The requirement of the law is that the jobs must be same or similar. The idea that someting is similar presupposes that they are not the same. I don't think salary is going to be a problem.

2. As long as the roles and responsibilities are the same and you are performing substantially the same job duties I do not anticipate any problem.

3. Regarding documents don't do it yourself. Get a lawyer. You need to file supplement J and it is something that should be assessed by a lawyer before it is filed. 

4. AC21 is good. Even if they cancel your I-140 it is not going to be a problem. Once I-140 is approved and it stayed pending for 180 days you are covered from every possible angle. In your case you are protected from every possible angle, even if the employer revokes the I-140. FAQ in detail...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch the Video on this FAQ: Being without a job on AC21

Video Transcript:

Having a gap in your employment while you are still qualifying for AC21 is not a problem. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch the Video on this FAQ: Getting promotions or changing job description while green card is pending

Video Transcript

If we are speaking of a green card filed through PERM it is complicated because any substantial change in the job requires you to refile the green card unless you have the intention to go back to the old job when you get the green card. 

One point at which you can change jobs, whether job descriptions or job titles or even employers is when your I-140 is approved and your I-485 has been pending 180 days, that's the AC21 portability. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch the Video on this FAQ: If H-1B transfer is denied, can I go back to my old employer? When does AC21 job portability

begin? Can H-1B be extended through a new employer while I-140 is in process?

Video Transcript

1. You can apply for an extension based upon two reasons either the first year anniversary of your green card filing that your PERM was filed a year ago or based upon I-140 approval. So, yes you can file for a one year extension if PERM was started a year ago.

2. The answer is yes, as long as one of the two things exist. Either the I-140 has not been revoked in that case you can use it for extensions or the I-140 was revoked by the old employer, but after 180 days of approval in both cases you can extend your H-1 through some other employer like employer B even while employer B's own I-140 is still in process. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch the Video on this FAQ: AC 21 job portability, changing jobs before 180 days

Video Transcript

I do not see any issue other than the time issue so if you are able to have the I-485 pending for 180 days you are good. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch the Video on this FAQ: Change in job title after getting a green card approval

Video Transcript:

We would have to look at your job title and job description in the green card and see how different it is from the position you took on. Unfortunately for consular processing people, we don't have that same law - the AC21 same or similar job law. So I cannot really comment that this is going to be or not going to be a problem. Generally speaking, if you are going through Adjustment Of Status process and your I-485 has been pending 180 days, your I-140 is approved that means you are covered by the AC21 rules. In those circumstances, a change in job title to a same or similar job is not a problem. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch the Video on this FAQ: AC21 green card portability for a lateral move from developer to analyst

Video Transcript

I think what you should do because this is an important benefit for you, you should have your case evaluated by a lawyer. Show them the job description of the next proposed job - salary, title, job requirements and let them help you decide. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch the Video on this FAQ: Porting green card to a self owned company under AC21 portability

Video Transcript

Yes. There are two hidden problems here that you need to be aware of and be careful. One it must be an employer, employee relationship. Second, your job should be same or similar. Talk to a lawyer. Make sure you have covered these two grounds very carefully. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch the Video on this FAQ: Pros and cons of adjustment of status and consular processing for green card

Video Transcript:

You have got your I-485 filed and that's a good thing and you kept it alive by keeping your advance parole alive, but you need a job offer and you need to file Supplement J. So if you want to take advantage of AC21 you have to move over to a new employer get a new job offer and use Supplement J to indicate to the USCIS that you are going through another employer. You have two choices. You can split the green card. You going through adjustment of status, you enter the USA with your Advance Parole and you file form I-824 for your family to go through green card processing through consular processing in Canada. So you can either bring them all in on an H-1/H-4 type visa or you can do your adjustment of status and let them do their consular processing.You should not convert yourself to consular processing that could probably end in the loss of a green card. You are taking advantage of AC21 which as far as I know is available only in adjustment of status. It is not available in consular processing. Hence adjustment of status for you and consular processing for your family makes sense. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch Video on this FAQ: I-485 applicant holding multiple jobs on EAD

Video Transcript

1. If you qualify under AC21 that is same or similar to the offered job under the green card or if you are going through the green card sponsoring employer, you will maintain that job. So, if you are currently maintaining that job full time and doing all other jobs at the same time or you intend to return back to that job when your green card is approved you can actually have simultaneous jobs with several different employers.

2. A green card is based upon a job offer which could be present or future. So for example, if you are working for employer A it can be a job offer for a present job or they could be offering you a promoted position. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch the Video on this FAQ: Physicians (FMG) NIW, AC21 portability, Teaching to clinical position

Video Transcription

Under the current regulations beginning January 17, you can actually ask for a predetermination before you change jobs. You can send your Supplement J and wait, for they got to decide it before you join the new employer. They will readjudicate the case so you will know if you are safe when you move instead of just jumping. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch the Video on this FAQ: If H-1 transfer is denied, can I rejoin my old employer?

Video Transcript

According, to USCIS, when you are working under AC21 you are not out of status, you are in fact working according to the law and hence you should be able to join back. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch the Video on this FAQ: AC21, changing jobs and when to file Supplement J

Video Transcript:

There is a graph on this about when you must file Supplement J on our web site and what happens after you file. 

As for your question, the answer is No. You will have to file Supplement J when the case is still pending, it's optional if you want to file you can but if you change employers next time and if there is an RFE you must file a Supplement J. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

You can continue to extend your H-1 even after I-140 is revoked by the employer, IF, the revocation was sent more than 180 days after I-140 approval.

Under AC21, you do not have to start a new green card if:

1. Your I-140 is approved;

2. Your I-485 has been pending for 180 days or more;

3. You will take an employment same as or similar to your green card job; and

4. You file Supplement J.

Question 1: Redo the PERM or just the I-140. If redoing the PERM again then what's new in this regulation? 

Answer: After 180 days, you can extend H-1 even if 140 is withdrawn.

Question 2: It seems that there is no easy provision for EAD/AP for approved 140 applicants. So is there any point in waiting for this rule or Should I consider Visa stamping is only option for traveling outside US? Please suggest as I waited for a year or long thought they are going to give AP.

Answer: Your observation about EAD/AP is correct- no easier. I will be surprised if USCIS changes these proposed rules in any significant manner when they finalize.

Question 3: If I have consumed my 6 years of H-1B and I have approved I-140. If I go to India and of some reason I got stuck in India. After a while I want some other employer to file my H-1B petition other then with approved I-140 employer. Do the new employer can apply for my new H1b cap exempt petition based on approved i-140 from my old employer. OR New H-1B petition from the new employer comes under H-1 cap count?

Answer: You have raised two separate issues. One, the I-140 can be used to extend your H-1 through ANY employer, if it is not withdrawn within 180 days of approval. Two, you are exempt from H-1 cap if your H-1 was approved any time within the last 6 years.

Question 4: Is there any provision for promotions internally within a company that filed the petition and the I-140 is approved more than 180 days previously?

Answer: These regs will only clarify (I am not sure they really do that) what "same or similar" jobs are. That concept is crucial when your I-140 has been approved and I-485 has been pending 180 days. At that time, you can accept a same or similar job anywhere, including within the same company, and NOT have to start your green card all over again. That comes under the topic of AC21 portability.

Question 5: Is direct portability of I-140 across multiple employers, ever possible. because I-140 is a property of the Employer and not the Employee (unlike 1-485) ?.Can we suggest any other creative options, of working around this legal hurdle. a. Can PERM be made portable across multiple employers. So employees donot have to go through the hassle of the PERM filing, repeatedly. This will save, almost 4 months of pre PERM filing effort and another 8-10 months of PERM processing window.

b. Or, can the I 140 be made an Employee’s property after 180 days it is approved. If that can be done then portability of the same may be legally possible across different Employers

Answer: The Priority date IS the "property" of the employee, NOT of the employer. So, an employee can port it to any job, anywhere, any number of times. But, I do not think they are excusing us from having to refile the PERM.

Question 6: Does the 60 day grace period is accepted in this case; H-1 Ext filed before expiry of I-94, then Current H-1 and I-94 expired, then H-1 Ext denied. Can we use 60 day grace period for filing new H-1 with new employer? In what cases does this 10 day validity before and after petition dates is used. The 60-day grace period appears to apply only in those cases where an approved H-1 employment abruptly comes to an end. The proposed regs say, upto 60 days may be given: "on the basis of the cessation of the employment on which the alien’s classification was based".

Answer: The 10 days allow you enter (but, not work) upto 10 days before the date your "validity period" (approval of petition) begins, and another 10 days to leave the USA (but, not work), after that period ends.

Question 7: Emp A - I-140 Approved and Moved to Emp B. Got i-140 with Emp B and priority date retained. submitted Emp A Experience letter while fling PERM. Now I want to move to Emp C. Do I still need to get experience letter from Emp B? If I am not able to get experience letter from Emp B, Can Emp C file PERM. if so and filed new PERM and I-140 with Emp C, Can I still retain priority date even though if its not same or similar job?

Answer: There are two fundamental principles that you need to apply to your case:

1. Priority date transfer does NOT require that your jobs must be same or similar.

2. Experience letters are NOT required for priority date transfer or retention. 

Question 8: Now that it is clear that there is almost nothing much in the so called reform, how can the immigrant community represent themselves forcefully, while the public comment period is in place? I understand that each one of us can go and put our comments, but is your firm, or someone else, planning to represent us? For lack of proper words, these so called reforms are a piece of trash, and only done to pretend as if reforms are taking place. It could not be worse actually. 

Answer: There is a limit on what USCIS can do without action from the Congress. You can certainly write your comments and several organizations will place their comments on the record as well. NORMALLY, USCIS does not change the rules much once they have been proposed. I think US immigration policy in "skilled" immigration is distressingly short-sighted. Our adopted country does not recognize the value brought in by us.

Question 9: My I-140 already withdrawn/revoked after 180 days of initial approval date. Now after implements new rule, will it apply for my case to extend my H-1 beyond 6 years?

Answer: I cannot say for sure whether USCIS intends to apply these rules retroactively. I hope they do. 

Question 10: Can you comment on what date will this become effective ? Is it after the comment period is over?

Answer: The effective date is unpredictable. Usually, it is a few months after the comments are over. 

Question 11: I need to clarify regarding the I-140 EAD for H-4. If the principal applicant has I-140 approved but the priority date for that category and country in the visa bulletin is more than 10 years back, Can the dependents, such as H-4, apply for I-140 EAD without the documentation for compelling evidence? If no, what are the examples of compelling evidence?I think the regulation does very little incremental for the EB categories. As mentioned, it provides clarification rather than provide more flexibility to the household or family of EB categories. I am disappointed with the revisions that have been made.Also, the compelling evidence was not required till now. What happens to those H-4 EADs which were issued since USCIS started applications from May 27, 2015? How would those H-4 EADs which are approved on the basis of I-140 approval of principal applicant be dissolved?Also, if the spouse moves from H-4 to H-4 EAD. Can he/she move from H-4 EAD to H-1B or any other non-immigrant category? Does the form I-539 allows movement among all categories?

Answer: H-4 EAD does NOT require compelling evidence. That is a different rule: http://www.immigration.com/blogs/form-i-140-form-i-765/h-4-ead-rule-cont...

I-594 does allow movement between all categories. H-4 to H-1 is definitely no problem. I agree; I am not too thrilled with the regs. But there is a limit to what Pres. Obama can do, folks. 

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/GtOqgqgEG6I?t=242

FAQ Transcript

Very important issue is Job portability. Today the way it works is an AC 21 portability was basically enacted by Congress back in October 2000 under a law called American Competitiveness in the 21st Century Act, the kind of abbreviation or acronym for AC21. What does it mean? If you’re I-140 is approved and your I-485 is pending whether it was filed with the I-140 or after I-140 approval. If it has been pending 180 days, you may change employers to any same or similar job anywhere in the United States and you will not have to do your Green Card again. So basically you can port your job over as long as it is same or similar. Tricky problem, what is same or similar? No one knows. If you are a software engineer and you remain as software engineer in the next job then same or similar. If you are a software engineer and you become IT manager in next job then not sure same or similar job.

This is where Obama steps in and he says look I will make it clear for the record that natural progression in a job does not take away from being a job same or similar that's the first thing President Obama wants to do and hopefully they will implement really quickly. So, natural progression is considered to be same or similar. Second thing President Obama wants to do is to let you file I-485 without the priority date becoming current. So that means you will earn a right for AC-21 almost a year- year and half, two years into your Green Card process which is very good. Right now if you are India born or China born you could have to wait minimum years to earn that right. So that's in a nut shell what AC-21 is.

Further down somebody was asking a question today: Do we have to inform USCIS?

Interesting thing is that there really is no formal process for implementing in AC-21 transfer over, job portability. Basically, you are not required to file a letter but we usually have employees, people, individual in that situation, file a letter and inform USCIS. Because USCIS is prone to making mistakes, sometimes if the old employer revokes your I-140, if you are an AC-21 eligible individual it does not make any difference if the employer revokes the I-140 as long as you cross the 180 days deadline. Even if they revoke you are entitled to AC-21. But the problem is USCIS sometimes is not aware of the new laws especially the less trained officers. They could revoke your I-485 and send you notice. Next thing is you are running around and trying to solve this problem and if the AC-21 is revoked you are immediately unlawfully present, you cannot work and work is debatable. Let’s just say you are unlawfully present, it’s just a whole lot of mess that should be avoided and that's why I also advice people to keep their H-1 active. So AC-21 letter should be sent.

Another question asked is should I hire a lawyer?

Please do not do this yourself, many things I OK with people doing by themselves you may be ok and you may be get through it. But this is not worth taking chance as downside is too terrible so get a lawyer don't do it by yourself.

Now the question before me

My I-485 (based on EB-1B) is pending more than 180 days. If I decide to change jobs under AC 21 rule -

1. Does the new job description be same as by definition of Eb-1B or should it match my current job description based on which I applied for GC in EB-1B?

Answer:  Current job description. If you are trying to take advantage of EB-1 portability or AC-21 portability your job description should be same or similar in relation to job description is already being filed.

2. Do you advise to change using EAD or transferring H1-B?

Answer:  I told you H-1 is better; keep your H-1B alive.

3. Based on your experience, will you advise to change jobs under AC 21 or stay in the present job until GC is approved?

Answer:  Yes if you have good opportunity. We have done thousands of AC-21 in last few years and we never had an issue as long as job is same or similar you should be fine.

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?v=sXq6DaDK7AA#t=472

FAQ Transcript 

The idea is once an I-140 is approved under any category EB-1/EB-2/EB-3 the priority date becomes the property of the employee. Whether the employee goes to work for a different employer or a different job completely or like a different job where you go from being a IT professional to a civil engineer you would still carry your priority date. This is not AC21.  AC21 requires same or similar job but that also requires I-140 approval, I- 485 pending for 180 days. This is not that case. The priority date transfer from EB-2 to EB-3 requires only the I-140 is approved. 

Hence the answer to the question is YES. If you get a job with the same employer or with a new employer that requires a masters degree or bachelors plus five year experience type of qualifications and your priority date will remain the same. The difference between AC21 and priority date carry over date is this: In AC21 you do not have to re file the green card. You can take the whole green card and take it over to a same or similar job if you’re I-140 is approved and I- 485 is pending 180 days. But in the priority date transfer you carry forward nothing. You only carry the priority date and it can be ported from EB-2 to EB-3/EB-1 to EB-2/EB2 to EB-1 it doesn’t matter. There is no requirement that the job that you are filing for is same or similar. That is the difference between AC21 and priority date transfer.

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?v=LK_Y0Vma0Mk#t=452

ANSWER TRANSCRIPT

First of all a company does not file labor or I-140. They are not going to do green cards.  

Now Kurapati actually does not stand for this.  Let me explain to you what happens. First of all I-140 can be revoked by the USCIS for fraud at any time. In addition they can also revoke an I-140 where it was not approvable when filed.  So if it was incorrectly approved it can also be revoked. If it does get revoked unfortunately USCIS reading of the law is it gives you no portability right and it gives you no right to priority date. I think that’s a question because if they revoke an I-140 after they have approved it I can still argue for the priority date if the revocation was not for a fraud. Although I think I would probably loose that argument. So in any case right now the rule is that if they revoke a case either for fraud or for not having been approvable when filed you get nothing out of it. You cannot get the priority date, you cannot get anything. The problem is what do you do?  Can you file an appeal and while the appeal is pending keep getting H-1B extensions and the answer is doubtful unless the old employer wants to file the appeal.

About five years ago we had a series of cases like this where a company went under - couple of hundred employees was put under the street. We were able to file appeals on behalf of the employees using the Kurapati logic. What is the Kurapati logic?  That’s the case in which the 11th circuit this year decided that even employees have the right to fight an I-140 revocation.  So in our view we always took the position that especially where AC21 rights are involved employees have a clear actionable plan to the I-140. So it’s not only the employer but even the employee who should be allowed to file the appeal.

What can you do?

In my view the best thing to do is leave this employer and find another employer who is willing to start your green card process because if this green card can go away really you need to have a backup plan. That is the only thing I can recommend.  

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://www.youtube.com/watch?v=LK_Y0Vma0Mk#t=452

I have heard that there is a proposal to allow filing of I-485 at the I-140 stage, without waiting for priority dates to be current. This, if implemented, would get you an EAD as well as the right to change jobs under AC21. Unfortunately, there is no clear indication about this proposal in any government document so far. 

1. USCIS says that it evaluates each consolidated financial statement on a caseby-case basis under the preponderance of evidence standard to determine whether the petitioner has the ability to pay the proffered wage.

2. USCIS says that, in this situation, the new employer is not obligated to demonstrate the ability to pay from the date of portability.

3. USCIS says that, in this situation, the new employer does not have to demonstrate the ability to pay during the entire period.  Once the Form I-485 has been pending for 180 days, the applicant may port and present evidence.  If AC-21 portability requirements are met, the dissolution or withdrawal of the I-140 petition (after the 180-day point) by the former employer does not affect portability.

4. USCIS does not specifically address why it will not accept prorated net assets as sufficient evidence to support ability to pay.  Prorating is not provided for in any policy, regulation, or statute.  Therefore, only current assets should be included in the calculation.

5. According to USCIS, the Yates Memo will apply only in respect of ability to pay. The adjudicating officer will look at the rate paid and not the total amount paid.  It is the petitioner’s burden to demonstrate that the rate that is being paid is an appropriate increment to the proffered wage.

A 1. There are two possibilities. First, the case is not yet ripe for adjudication (for instance, it has not been assigned to an officer or the security clearances are not yet submitted or obtained), USCIS can shelf the case and not process it any longer untile the PD becomes current again. Second, USCIS can “preadjudicate” that case. That means the case is adjudicated and then shelved for PD to become current again. I do not believe there exists a mechanism currently to determine what USCIS will do with an individual case.

A 2. Not usually. Here is what USCIS says about expediting:
Expedite Criteria
All expedite requests are reviewed on a case-by-case basis, and are granted at the discretion of the Director. The burden is on the applicant or petitioner to demonstrate that one or more of the expedite criteria have been met. The criteria are as follows:
• Severe financial loss to company or individual
• Extreme emergent situation
• Humanitarian situation
• Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States
• Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government)
• USCIS error
• Compelling interest of USCIS
Note: Discretionary expedite requests for petitions and applications that have Premium Processing Service available will not be considered for expedite processing. The only exception is when the petitioner is a not-for-profit organization designated by the Internal Revenue Service. For information regarding premium processing, please refer to the premium processing webpage.
If you have already filed your application or petition:
You can make an expedite request by contacting the National Customer Service Center (NCSC) at 1-800-375-5283. The NCSC will take a “service request” and forward your expedite request to the office with jurisdiction over the application or petition. You also have the options of 1). visiting your local office by scheduling an InfoPass appointment or 2). writing a letter to the local office or service center.

The way it works is that the company can file everyone's AOS (Form I-485) together OR they can first get your husband's I-140 approval and leave you to file the last step (AOS) for the family.

Answer 1: EAD is usally processed within 90 days and AP within 3-6 months. You can check I-131 processing times from links on this page: http://www.immigration.com/processin...-status-checks

Answer 2: A visa stamp is NOT required. Proper status only is needed.

Answer 3: It is NOT advisable to travel before AP is issued, if you do not have an H/L visa already stamped. For details, listen to recording's of the community conference call. It is posted here: http://www.immigration.com/free-comm...nference-calls

Answer 4: Presence in USA for 485 filing is mandatory. See previous answer for AP.

Answer 5: I do not believe VO has the authority to revoke an AP.

Answer 6: Under Cronin memo, if you enter on AP to continue working on an existing, valid H-1, you are still considered to be on H-1. I believe your spouse can use his H-4.

Answer 7: Before APPROVAL of I-485.

Answer 8: Your spouse can file his 485 if he is in USA; Priority Dates are current AND he has not been out of status for more than 180 days -- whether or not your 485 is already approved.

You need to contact USCIS customer service for guidance. Definitely put something down in writing that you are requesting a rescheduling. Maybe asking your Congressman's assistance is the best way to go for rescheduling.

We would highly recommend not applying for an H visa if it can be avoided. In the past few weeks, I have provided consultations to various employers on H-1 visa refusals. The refusals were ridiculous, illegal and would be overturned if there were an adequate mechanism for reversal. So, I see no point in applying for an H-1 visa. Even if you enter on AP and continue working for the original H-1 employer, you ARE considered to still be on H-1. All other matters are more or less ancillary.

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

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

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

1A.  Yes.

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

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

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

5A. There is no such obligation for the employee. If the employer informs CIS, they should send (eventually) an NOID requiring proof of employment – see the answer above.

6A. No.

7A. No.

8A. I am not sure I understand, but there is no deadline unless an RFE or an NOID is issued.

9A. Since your I-140 is approved and I-485 has been pending over 180 days, you are entitled by law to change jobs to a similar position with any employer. And you do not have to start your green card all over again. This is referred to as AC21 portability – discussed in exhaustive detail on my blog. But if the jobs are not similar, you can only carry forward the PD and have start your GC all over again. Make sure you maintain H-1 status.

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

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

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

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

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

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

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

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

3. In my view, AC21 port is easier.

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

2. No. See answer above.

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

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

5. Advance Parole and Passport.

1. An EAD is good to work on US soil only. If you wish to work in a third country, you have to look to their laws for work permissions. You should file an AC21 portability and make sure during your entire stay abroad you have at least your Advance Parole; preferable both your AP and H-1 visa.

2. As long as the permanent job continues to exist, there is no other requirement of presence.

3. I see no problem with visiting USA as often as you like.

1. Theoretically, you can work for as many companies as you like on EAD. My concern would be the implication that you no longer have a full time job with the sponsoring company, which is a requirement for the green card.

2. Since you are on a derivative EAD, you have even more freedom than the primary applicant. Other than an S corporation (I think that requires green card under tax laws), you can form any kind of corporation (LLC, etc.), but do check on the State law.

A1) There is no formal procedure other than joining, preparing a Form I-9, being on the payroll and actually working.

A2) You can behave like you would in any other permanent job - take vacations, etc.

A3) That question has been answered on my blog. See http://forums.immigration.com/blog.php?b=36

a). The first issue would be whether or not you still have a "permanent job" that would qualify you for a green card. In situations of long vacation, questions could be raised whether or not the green card job is indeed permanent; if so, who will do it in your absence; what is the reason for your leave; are you terminating your relationship with your employer, etc. If you have good answers to all these questions, you are fine.

b). Getting a green card approval while you are abroad is not a large issue as long as you have advance parole. Giving a relative's address is a bad idea. In the absence of a US address, you do run the risk of the green cards being returned back to USCIS, but we can figure that out.

c). USCIS may not accept medicals from anyone except a USCIS approved physician. But we can double check options on this issue also.

NIW applicants get their green card based upon an expectation of employment - not employment (unless you are a physician). So, if you have a job offer in your area of expertise, your travel on AP is fairly safe.

A legal marriage in India is fully recognized in USA.

That example does not make any sense. It appears to be more a clarification of a concept - NOT practice. Do NOT worry. You are fine. If someone has not already done so, I will write USCIS next week after reviewing the entire 51 page memo carefully. Do NOT lose sleep over this.

Approval of AOS (Form I-485) means she is now a green card holder as of the date of the approval. The only thing she needs is the proof of that fact. You can take the approval notice, make an infopass appointment and ask that her passport be stamped with evidence that her green card has been approved. That stamp is as good as a green card. She can travel using that.

I am assuming the situation is that the husband's AOS is pending and he is using AC21 portability. That said, she is entitled to follow to join because she was (is) married to him before his green card got approved. There is NO requirement that a spouse must on a derivative visa (like H-4) in order to follow to join. She can follow to join even if she is outside USA, OR on F-1, H-1, L-1 or any independent visa. She will have to stay outside USA if her H-1 is denied, unless he revives his H-1 and brings her back on H-4.

Pursuant to section 245k of INA, an employment-based applicant and their family can file for an AOS (I-485) if they have been out of status or have worked without authorization for less than 180 days. The protection period is counted since the date of your most recent entry into USA. So if before filing I-485, you leave USA and reenter, you should have no issues. There are other ways to fix this also, but this is the most direct.
See attached USCIS Neufield Memo of 14 July 2008.

1. EVL can be asked for at any stage of AOS/I-485 process. It is REQUIRED when you submit the 485, but thereafter it is discretionary.

2. The main reasons are that USCIS has to make sure you still have a job and the job is "same or similar" to what was described in the labor cert (or I-140 for EB1).

3. This means your application has been reviewed and adjudicated to be approvable. So, USCIS is just waiting for the visa numbers to be current.

Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.

Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.

Status
Status is the immigration designation what has been given to you by USCIS. For instance, when USCIS approves your H-1 with an I-94 attached to the approval notice, you are in H-1 status.

Status and Visa
The difference between status and visa is important. A visa is a stamp on your passport. This stamp is placed by US consulates outside USA. The system of entry and stay in USA is governed by dual permission (DHS and DOS). When you are outside USA and you wish to enter, you first go to a US consulate (an arm of DOS - Department of State or State Department) for the appropriate visa stamping.

For instance, for a tourist visa, you go the US consulate in your home country, follow their procedures and apply for a "B-2" visa. When you get the B visa stamp you have been permitted by one agency (US State Department) to enter USA. If the visa stamp is valid for 5 years, you may travel to USA any time during those 5 years. This is your first permission in the dual permissioning system.

Now with the B-2 visa, you travel to USA. When you land at the US port, CBP (an arm of DHS - the Department of Homeland Security) decides whether you will be allowed to enter USA and how long you can stay in USA. The permission to stay in USA is given to you in the form of a small card that is put inside your passport. This card is called "Arrival Departure Record" or Form I-94. The I-94 has an expiration date.

Once you are inside USA, you are "in status" only till your I-94 is unexpired. If you wish to seek an extension of of your stay, you must request USCIS (another arm of DHS) for an extension.

Authorized Period of Stay
Authorized period of stay means you are not illegal but you are not in full status. Taking the example of B-2 extension I was discussing above, let us say you want to stay longer than the stay initially given on your I-94. You will need to apply for an extension BEFORE your current status (the termination date on your I-94) expires. Once you have made a timely application for extension or a change of status (for instance you wish to change to H-1B), you can continue to stay in USA till your application is decided (but not past the point you had asked for as an extension). The moment your I-94 expires, you go from being "in status" to being in "authorized period of stay." This is less than full status (for instance you cannot change status within USA when you are in authorized period of stay, but you can do so when you are "in status."

Authorized period of stay also applies to people who have applied for the last step of their green card, "Adjustment of Status" (AOS or I-485). When someone files an appropriate AOS, they are in authorized period of stay until their AOS is adjudicated, no matter how long it takes.

Unlawful Presence
This is the real bad one you have to watch for. If you accrue 180 days of unlawful presence in USA, you are barred from entering USA for 3 years. If you are unlawfully present for one year, you are barred for 10 years. This is referred to as the 3/10 bar. A rule of thumb is, unlawful presence begins to accrue when your I-94 expires and you have done nothing to extend/change your status or when the government says your unlawful presence has begun (typically happens when an extension or change of status is denied.
 

In AOS (I-485) Context

Quote: Hope you remember me. I am one of your clients and you had represented me for my H1-B. Today I was laid off from my employer who was the H1-B sponsor. I have my AOS EAD as a beneficiery to my husband's PR process. I am concerned about my status in the US. My husband is also on EAD as he recently changed his employer using AC-21. Could you please help me? What status am I on now? Can I stay in the US? I currently have a valid I-94 in my passport. I need to decide the future course of action

Ans. You are now in authorized period of stay and can legally stay in USA. To work, you will need an EAD and to travel an AP.

In Change of Status Context
Updated 11 May 2009
Q. I am currently on H4 visa and the expiration date of my I-94 is May 23, 2009. My spouse had applied for an extension during the last week of April 09. In between, I received an offer for MS course at Penn state University, PA - US. I am planning to join school again on F1 visa since I have received assistantship/ financial aid from my University. I am planning to join for Fall 09 semester which begins in August 09.

Since I have to apply for a change of status from H4- F1 , is it possible to do this having applied for H4 extension now? Is there any way by which I can submit an application for F1 visa directly to USCIS without going for H4 extension?

Ans. The rule of thumb is you can always apply for COS when you are in status, but not when you are in authorized period of stay. Upto 23 May, you are still in full H-4 status. After that day you will move to authorized period of stay because your H-4 status would have expired. So, if you file for a COS now, it should be fine. After 5/23 you have two choices. Wait for H-4 to be extended, then apply for COS to F-1 OR go outside USA any time and get F-1 visa stamping.

Quote: I just got a letter from USCIS that I need to appear for a I-485 interview. I had applied my green card under the EB-XX. To update you i had an arrest record in 2005 for a domestic violence battery case, which was later dismissed in court. Also you might be aware my wife is currently in india, and we are under separation. She will join me on (XXX date) if she agrees for marriage counseling. Under these circumstances I had some questions which I wanted answers for: Please let me know your response.
 

Quote: a. What all questions can the officer ask me in the interview?

Ans. No one can reliably predict that. But there is nothing in your background that seems to indicate there will be a problem. You were not convicted. The rules are simple: do not answer what is not being asked, and answer every question truthfully.

Quote: b. My wife is now in our home country. Do i need to have her accompany me?

Ans. Your case is an employment-based case. Unless USCIS specifically asks for her presence (which would be strange), it is not required.

Quote: c. Can the officer ask me for another interview with my wife, if she isn't with me the first time?

Ans. They can, but I do not see why.

Quote: d. What should I say about the DV record?

Ans. The truth and nothing but the truth.
 

Quote: e. Does the officer approve my green card after the interview or does it
take some more time?

Ans. They have the authority to approve on the spot. Whether or not they will is their discretion. Often, the approval comes a few weeks later.

Quote: f. What if the officer asks me about the status of my marriage, what
should I say?
Should I say yes we are married or should I say that we are separated?

Ans. Married but separated. You tell the truth.
 

Quote: g. Does my wife need to be in US when the final green card is approved?

Ans. No. Make sure she has her AP.
 

Quote: h. What happens if the green card is approved while she is in india?

Ans. She can reenter with her AP.

Quote: 1. Hello Rajiv, my wife and I have been working on H1B for different employers. My employer applied for my GC in 07. I have my I-140 approved, my wife and I have our EAD cards and AP. Thanks to your team! Now my wife's H1B term (6 years) ends on Jan 2010. Does this mean that if she wishes to continue her employment with the same employer after Jan 2010, she "HAS" to use her EAD ?

Ans. Yes. Under the current USCIS policy, they will not extend her H-1, based upon your I-140. They used to do that a few years ago, but not any more, as far as I know.
 

Quote: 2. If not can her employer file for her H1B extension based on my I-140 application.(Probably not since I-140 is an employer based application,but wanted to know if there is any other way).

Ans. No other way.
 

Quote: 3.If my wife were to change her employer after Jan 2010, could the new employer file for H1B transfer? If not does this mean that the option of a new employer filing for her H1/green card is completely ruled out?

Ans. She cannot get an H-1 extension beyond 6 years unless her own green card process is started.
 

Quote: 4. This question is not related to the above, but we are expecting our first baby in the month of August. Are there any applications that need to filed after the kid is born?(I am just glad that USCIS doesnt have any laws regarding making babies during the I-485 pending stage.Or is there...?)

Ans. Congratulations! And no, there are no laws against making babies so far :-). You have to do nothing. The child is born a US citizen if born in USA.

Correct. "Unavailable" means that it is the ESTIMATE of the State Department that visa numbers for India are exhausted for this fiscal year which ends on September 30. But the estimate may not always be accurate. DOS may go back and reopen this category if they need to (unlikely, but not impossible). Your green card can go on in your absence. That is no problem as long as we have answers to these questions: 1. Is the job really permanent? 2. Why is the employer accommodating you? 3. Who is performing the job in your absence? While these questions have never been asked, do not be surprised if they are. Our explanation must be truthful and not contrived.

Ans. Yes. As long as the employer has the intention of keeping the job open for you and you have the intention to join them, the green card process can continue.

Quote: If by any chance they say that I can do it, does it involve just an amendment to my H1b or will it be a fresh H1b? My job responsibilities will change and $8000 change in salary only.( from Research Associate to resident). If yes, can I join residency before the amendment is approved? I heard that INS should receive the petition before the join date and I am fine.

Ans. The petition would need to be amended/extended and you can start residency any time after filing the amendment.

Quote: Worst case scenario my I -140 get’s rejected what are my options to start residency in july? I remember last time you told me that my current H1b will not be revoked, so I can continue for residency till nov 2009 , but what after that?

Ans. I have considered the question of revocation of existing H-1 if the 140 etc is denied. As I see the law, USCIS COULD, some day, start revoking these H-1 extensions already given. Currently, they do not. After Nov 2009, you can still get extensions of H-1 based upon your pending GC. Remember also that if I-140 is rejected, it can be refiled/appealed. You are entitled to H extensions while the refiling/appeal is pending.

Quote: I am currently on H1b status valid till may-2011 and have a valid EAD card, My I-485 is pending for over 180 days. My company has cut my position and may revoke my H1b. If I transfer my H1b to another company and then work on EAD. Will my H1b remain in the dormant status?

Ans. Yes.

Quote: If yes, can i switch back to my H1b if i wish to? and what would be the process?( go out of country to get stamped?)

Ans. You will need to get an H-1 approval by having your new employer apply to USCIS any time you like (just like a new H-1 or an H-1 transfer. This is, of course, NOT subject to quota). After the approval you need to exit and reenter USA using your H-1 visa. You may use the old visa stamp if it is still valid and you have not been out of status or get a new stamp if you were out of status or the old stamp has expired.

Quote: Rajivji,

If I convert from H1B to EAD with my current sponsoring employer and they revoke the H1B as you have mentioned before being the best thing to do.
1) Does the H1B revocation still mean that my H1 status is dormant?
2) Would I be able to reactivate my H1 again with the current employer?
3) Would my employer have to reapply for the H1 approval or the current approval that I have valid till Apr 2010 enough?
4) I am assuming based on the answer to Q3 above, I will have to go out of the country and come back on my current H1 visa that I have stamped?

Ans. Once revoked, the H-1 will have to be reapplied, will not be subject to the quota and will be valid for 1 or 3 years depeneding upon your situation. And, yes, you will need a visa stamping to activate the H-1.

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

 Additionally, I suspect there could be exposure to charges of discrimination if one set of workers is getting paid less than another in the same job categories.

The best solution for most companies is NOT to bench employees whether on H-1 or on EAD. Salary reductions are permissible if they are across the board and still comply with the prevailing wages. The workers on non-immigrant visas will probably need amendments. Watch out for the I-140/I-485 issue though.

Qo. I plan to be on EAD after my 6th year of H1-B expires on September 23, 2008. If I decide to be back on H1-B then is there any time limit within we have to file for H1B extension after its expiration on September 23, 2008 while I am working on EAD?
Ans. Generally speaking there is no time limit as long as you are entitled to the extension.

Qo. For example, will we have to file within 6 months or 1 year after September 23, 2008 while I-185 is still pending?
Ans. If it is an extension beyond six years, you will need to have 485 or 140 pending and meet other related requirements for the extension.

Qo. After USCIS approves H1-B extension in this case, are we required to go immediately to India to get visa stamped or can we keep working on EAD and get the H1-B visa stamped when we like. My I-140 is approved and I-485 pending.
Ans. You can go when you like.

Follow up Qos/Ans

Qo. Thanks a lot, Rajiv. Just one clarification related to H1-B visa stamping in the above case. Do you think the US embassy will ask me why I want to come back to H1-B after having worked on EAD for say 6 months or 1 year after 6 years of H1-B expiration at the time of applying for H1-B visa?
Ans. It should not be any of their concern.

Qo. what should be the response to their question?
Ans. The truth.

Qo. Also, God forbid, in a worse case scenario, if my I-485 is denied after my H1-B extension has been approved in the above case and then I go for H1-B visa stamping, w'd they still give me visa?
Ans. That is legally uncertain. So it is wise to get stamping while the 485 is still "alive."

Qo. On a different note, is there any basis other than a crime, misrepresentation, public health, or revocation of approved I-140 on which the I-485 can be denied?
Ans. Sure. AOS is a discretionary process. It can denied for many reasons (but usually is not).

Qo. If not, then will it still be more advantageous to work on H1-B instead of EAD? I am just trying to evaluate the benefit of coming back to H1-B as opposed to keep working on EAD. Your answers to the above questions will help me greatly in that direction.
Ans. As I have commented several times, I like to keep both options open. So, work on H-1 while keeping your EAD in hand.

Further Questions 

Quote: Me and my spouse are working on H1B for two different companies. My spouse company is processing the green card and the process started in 2005 in EB2. We got married in 2006 and I-140 got approved before our marriage. We filed together for I-485 after marriage in August 2007. We got our EAD card in Nov 2007. We also got our second EAD card in Nov 2008 and it will be valid till Nov 2010.
Though we had EAD card, we are using our H1B. Now, I got laid off from my company last week. I am looking for opportunities. I hope I could find one in a week or two. My questions are
1. When I join my new company should I use EAD card or I do H1B transfer? Please advise.

Ans. H-1 is the best option usually. You can try for a transfer. Usually, CIS declines transfer within USA (requiring you to go outside USA for a visa stamping) if there is any gap in status. But, it is in their discretion to permit it. Joining on EAD is no end of the world. You can start work on EAD and file an H-1. Gert stamping done whenever it is convenient. When you reenter on H-1 visa, you are back on H-1.

Quote: 2. Also, if the market goes further bad and my spouse also got laid off, what will happen to me if I am using my EAD?

Ans. If she uses AC21, you should be fine. Otherwise, if her 485 is void, so is yours. 

In a pending AOS (I-485), unless your PD is current, USCIS will not touch your application. Only when the PD becomes current, they start processing applications ROUGHLY in the order received.

Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?

Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.

Quote: (2) Do we need to notify anyone about their GC process and let them know that they are no longer working for us?

Ans. There is no such requirement, but the better practice is to write to CIS revoking the I-140.

Quote: (3) Can we re-hire them on their EAD after few (or several) months once they get a project on their EAD?

Ans. Yes, but the question about "permanent job" remains.

Quote: (4) Can we continue their Medical Insurance (and our company pays for it) even if they are NOT employed with us.

Ans. I can see that as objectionable on several grounds.

Quote: (5) Can they stay in USA if I cancel there H-1 and they have a valid EAD but they are NOT employed by anyone.

Ans. Yes. Have them review the entries on my blog under I-485. You will still have unanswered questions about "permanent job."

Quote: (6) Is there an alternative for them to apply for Consular Processing, under what circumstances should they do so, what are the benefits / disadvantages

Ans. I see no advantage in CP. The basic question about a permanent job remains unanswered.

1. She can NOT do this on H-4. Once you folks file 485 and get EAD, things will be different.

You can then be a passive investor (performing no work type activity for the company) even while on H-1. You can also be an active investor if you wish to move to EAD as long as you maintain your intention to work full time for the GC sponsoring employer. Your wife can work for the company, own it, be partners, etc. as long as she has the EAD.

2. I think that should be fine. But passive means performing no work. Think of it as investing in IBM on the stock market. Just because you purchase a few shares, you do not get a seat at the Board of Directors of IBM. That is passive investing.

Quote: 1) Do I need to inform company ‘B’ and be in their payroll with immediate effect?
2) If company ‘B’ cannot provide me a job in my location and offer the salary I demand, is it a valid reason for me not to join ‘B’?
3) How should I inform company ‘A’ about my green card and what is the best reason to justify my case to continue work with company ‘A’?
or Should I inform company ‘A’ only when I fill the I-9 form next year Jan 2010.
4) If I inform company ‘A’ now about the green card, is there any legal basis for company ‘A’ to take any action on me and terminate me?
6) If I am impacted in any way, will my spouse and daughter loose their green card status.

Ans. Your basic question revolves around one issue. "Am I obliged to join my sponsoring employer after GC approval?"

This is a tough question to answer with so many shades of gray that I am venturing into conjecture rather than well-founded legal opinion. But I must try, because this situation does come up a lot.

First, we all the know GC is for a future position but you must have an honest intent ("good faith") to join the employer and they to hire you.

Quote: Practical hint 1. Document as best as you can that you had a good faith intent to join the employer and they to hire you, but due to the economy or whatever other reason they do not have a job for you. You can get a letter from the employer and some evidence that shows they have lost business and have had employee lay offs. You are also not obliged to take a pay cut over the labor cert salary or join in a location other that that mentioned in the labor cert.

Ans. Second, in my opinion, if you will join them, you should do so within a reasonable period. There is no definition of that either. May be a few months delay is justifiable.

Quote: Practical hint 2. If the job you are doing now and the job under the GC are same or similar, make sure you document that. Keep copies of your labor cert and of your current job description. This gives an additional argument to protect your GC under AC21.

Ans. The reason I am asking you to document all this is that when you apply for naturalization, these issues may and often do come up. I am thinking of the defense you will need 5 years from now and if we end up taking the govt. to court, we can have good chances of success.

Company A should have no reason to let you go but you should update your I-9 now. If your GC is revoked so will that of your family.

Still, India. Your chargeability follows the place of birth, not your citizenship.

 H-1 by Start-up Companies

It can be really difficult for start up (or very small) companies to obtain H-1 visas. Doubly so, if people are being hired outside the U.S. Normally CIS asks you to prove:
1. You are capable of paying wages
2. You have sufficient amount of work
3. You are a reliable company with proper staff, offices and equipment.
4. If providing consulting services, you are able to procure a letter from your end-client showing the terms of engagement including what the H-1 holder will do and who will supervise them.
YOU MAY SUCCEED If you can:
- SHOW HOW YOU CAN PAY THE WAGES
LINE OF CREDIT
We have advised people to try to get a line of credit from a bank. That works sort of like a credit card. Unless you use the money, you pay no interest on it. Contact any local bank for more details. It is difficult to put down exact numbers, but $250,000 line of credit is a healthy number. Please note, merely having money in the bank may not be sufficient. Also, those companies that are starting with a promised Venture Capital of more than $500,000 should be OK.

BUSINESS PLAN
Having a solid, detailed business plan can help. There is mush software out on the shelves that can help you put together a good business plan.
This will also help show how you have enough work for employees.
LETTER FROM/CONTRACTS WITH CLIENTS
If personnel are being outsourced, contracts from clients will help.

Start up Companies Doing AC21
There is no law on this issue. The current thinking of CIS appears to be that there is no problem in doing AC21 for a start up, as long as the job offered to the employee is similar to their labor cert job. In the past, CIS had tried to question the start up on ability to pay wages. But Yates memo of May 2005 (posted on my blog under AOS/485 section) shut that down stating that is not relevant.

Start up companies starting new green cards
This would be difficult because you have to demonstrate the ability to pay wages from the day you file the labor cert on to the time an employee actually receives the green card approval. This ability is usually shown through a profitable tax history. But if you are consistently paying an employee the wage he/she is supposed to be paid under the labor cert, you are in a good position to get your GC through.

Quote:

Both me & my wife have EAD and have our full time job. My question is , it is possible for us to start a new LLC ??

Ans. On an EAD, you can start a company and do everything that a green card holder can do including opening and owning your company as an active participant/owner. Your spouse has larger freedom than you do. You have to be in a job "similar" to your labor certification job. In the May 2005 Yates Memo (Posted under AOS discussions in my blog), Yates said you can port to your own company, but I recommend that only as the last option, because there are some troublesome issues that are still unsettled in self porting.

Quote:

Can I hire few more peoples on H1B ??

Ans. Yes.

I am thinking about applying for green card under EB-1A or EB-1B. Currently I have an approved I-140 (2005, EB2). I have a few questions:
Q.a) Is the EB1A or EB1-B I-140 premium processed?

Q.b) Do I need to submit another set of I-485 with the EB-1 application even though the EB-2 I-485 are pending with USCIS?

Q.c) Which option would be better for me - EB-1A or EB-1B? I am currently an associate professor at XXX University.
 

Ans.a) Currently, there is no premium processing for this type of cases.

Ans.b) No. We should be able to use the same 485.

Ans.c) The answer to that depends upon two main factors: whether or not you have a "permanent" job and whether or not we have a strong enough resume for the higher category. Generally speaking, if we have a permanent job, I shoot for the lower category where the approval is more likely. Just send an email to Leslie for us to talk more about this issue. Email her your resume also.

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 I would like to be on my H1B even with the new employer. To my knowledge we should file a new H1B within a month but due to the market situation if I have to get on to EAD then can I get back to H1B? If yes then with in how many days should I apply for H1B?

Ans. If you do go on EAD, you can get back on H-1 provided you are willing to get a visa stamp from outside USA. There is no limit on the number of days.

I also think you can try filing for an H-1 transfer and ask to be "forgiven" the 30 days gap in the H-1 transfer.

Further, per Yates memo (posted above in another note on AC21), even if the employer revokes I-140, you still keep your right to AC21.

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If I move from VA to MD the prevailing wages is changing. So should we file for a new LC?

Ans. No. That is the whole point of AC21. You should not have to file a new labor certification or green card as long as the job and salaries are similar.

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Within how many days should I file for AC21?

Ans. No limit. But in my view, ASAP.

Pretty much anything can be within the context of a case. Supervisory review means just that - a review by a senior level adjudicator. Usually, that means there is some unusual procedural or legal issue involved. The good news is that, means your case is being reviewed, the bad, we don't know for what. You can try to go through a Congressman's office to find out more if you like.

Bottomline - I think H-1 should be renewed.

A little more info: A few months ago, I used to feel strongly that AOS applicants should keep their H-1 active for several reasons. Two of these are:

One, EAD issuance was erratic and CIS had discontinued issuance of interim EAD's (that is, if in 90 days your EAD is not issued, you could walk with a infopass appointment to your local CIS office and get an EAD). Thus, EAD's were unreliable and given for only a year. You could have interruptions in your work.

Two, if your AOS were to be denied (even in error), you would have no way to work, because the EAD goes with the AOS. And since there is no appeal against AOS denial, only an MTR can be filed. While the MTR is pending, you are not given a work authorization (as of now, July 2008). In addition, you would not be able to get n H-1 extension beyond the original six years because nothing is pending and "final action" has been taken on your green card. This could result in a situation that can be very dangerous. You do not have an H-1, a pending MTR gives you no legal status to sty in the US. Not only can you not work, you are deportable and you are accruing illegal presence even though the MTR is pending.

While CIS has done well to eliminate the first concern by reinstating the interim EAD issuance policy, the second concern still bothers me. While erroneous denials are few an far between (thank heavens), they do, nevertheless, occur. So, just maintain your peace of mind by keeping your H-1 active. That is my opinion. Reasonable people can easily argue against this and perhaps, their points of view may be just as valid.

All the above holds true, whether or not you intend to use AC21 portability.

As of July 2008, this is how the system works.

First, let me provide a little background. Priority Date is the date your PERM is filed (in Case of EB-1 or NIW – the date your I-140 is filed; in case of Family-based petitions – the date your I-130 is filed.).

When the Visa bulletin shows a category is current, the I-485 (AOS) can be filed in the month the PD is current. Once AOS is filed, if the PD stays current, CIS continues to process the case. They call you for FP, put you through security checks and if no further evidence or questions are raised – approve the case. Upon approval, they seek a Visa Number from the State Department. Once that visa number is received (by fax or electronically), they approve your AOS. Eventfully, your GC is produced and mailed to you.

If the PD does not stay current, CIS puts the adjudication on hold till the PD is current again. When the PD is current, again AOS processing is resumed. This part makes no sense to me, but that is how, I believe they generally do it. Now, if you are fortunate enough to have already been assigned a visa number, your case may be approved even if the PD’s slide back again. But if your fingerprinting has not been done, you cannot get a green card approval.

Do feel free to correct me if my understanding is incorrect.
 

Qo1. Would it be advisable for my wife(secondary applicant) to change to EAD in case she gets a better employment with another employer? This employer is not willing to transfer H1.
Ans. That should be fine.

Qo2. All that is required to work on EAD is fill in form I-9 and submit a copy of EAD with it. Does the employer have to do anything like notifying USCIS etc?
Ans2. The employer has to do nothing more than prepare the I-9 and keep updating it every time new EAD is issued.

Qo1. Would it be advisable for my wife(secondary applicant) to change to EAD in case she gets a better employment with another another employer? This employer is not willing to transfer H1.
Ans. That should be fine.

Qo2. All that is required to work on EAD is fill in form I-9 and submit a copy of EAD with it. Does the employer have to do anything like notifying USCIS etc?
Ans2. The employer has to do nothing more than prepare the I-9 and keep updating it every time new EAD is issued.

Qo3. From what I have read on forclients.com if she joins on EAD now she can come back later on H1 but will have to travel out of the country and get her H1 stamping done. Is this right(just confirming it)?
Ans3. Correct.

Qo4. When she comes back on H1 she will be using the current H1 itself? It will not be a new H1 and we will not have any issues of new H1 quota right?
Ans4. Correct.

Qo5. If she decides to come back to H1 should it be before April 2010(when current H1 expires) or it can be after that also?
Ans5. Any time.

Qo6. What happens if her current employer reinvokes her H1 after she quits them. Can she still come back on H1?
Ans6. When she leaves, they should revoke her H-1. If she wishes to rejoin them, they can reapply the H-1.
 

Q1. Is there any limit or restriction for number of days without work between changing job?
Ans. No. I do not believe a few weeks should make a difference.

Q2. Will this impact his GC process?
Ans. Not as long as he is eligible for AC21 portability.

Qo. If an AOS (adjustment of status or I-485) applicant has already used up six years on H1 and is currently in 8th year of H1, what are his/her options if AOS gets denied before the 8th year on H1 expires?
Ans. A lot depends upon the grounds of denial and whether they are likely to be overturned on a Motion to Reopen/Reconsider. Do note, there is no appeal against a 485 denial.
Technically, as I see the law, if CIS denies the AOS, they can also revoke the H-1 given beyond six years. As a practical matter, they do not. So, even after denial, you should be able to stay in USA to the end of the already granted H-1. You can start a new PERM application and eventually, get H-1 extensions based upon that.
Also, just because AOS is denied, may not mean the CP is not an option. Depending upon the facts of the case, consular processing for green card may still be an option.

Qo. So, would it not be better that a person who applies for AOS should NOT insist on maintaining H1 because he will use up the six years sooner. He should use Advance Parole and EAD to stop the H1 clock because H1 will give him/her more options ONLY IF six years are not up. Your thoughts?
Ans. That may be a good option if there is over one year left on the original H-1 AND the beneficiary is not entitled to three-year H-1 extensions. I get very nervous when your entire work options are based upon an EAD whose renewal time is left in the hands of CIS.

Qo. In your practice, have you encountered similar scenario where I-485 was denied but H1 was not canceled?
Ans. Yes. Several times.

Qo. I was given a three year H1 extension in my 8th year on H1 based on pending I-485 application and approved I-140. Please note that at the time of requesting H1 extension, my employer requested 3 year extension which I thought I wasn't eligible for as visa dates had not retrogressed for my category so I should have been given one year extension.
My three year H1 extension is valid until 2011(8th, 9th, 10th year on H1), in case of AOS denial in the 8 th year, do I have two more years to sort it out?
The maximum time one can stay in H status is 6 year unless the AOS is pending. If AOS is denied and CIS DOES NOT cancel H1 with AOS denial, does such a person start to accrue unlawful presence in US?
Ans. If you have been given an extension mistakenly, that can be taken away and you can have other issues as well. And, I don’t want to us to digress into unlawful presence. That is a whole new topic.