What Happens When You Change

Employers During the Permanent Residency Process?

Hosted by:Murali Bashyam and Ame Coats

Bashyam Spiro LLPwww.bashyamspiro.com

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Outline

• AC21• Retaining Your

Priority Date

Today’s Dialogue Map…

Outline

American Competitiveness

in 21st Century (AC21)

Today’s Dialogue Map…

AC21

Can Change Jobs If:

• I-140 Approved;

• I-485 Pending for Over 180 Days; and

• Same or Similar Occupation

AC21Example:

Ame is being sponsored for permanent residency by Raleigh, North Carolina-based Bashyam Spiro – Immigration Law Group. (Not really, but just for the sake of discussion!). Her labor certification was approved and her I-140 is pending. Ame also has an I-485 application that has been pending for 100 days. She’s just not happy with us and wants to leave. What happens?

– What if Ame’s I-140 was approved?– What if Ame’s I-140 was pending and her I-485 was pending for over 180

days?– What if Ame’s I-140 was approved and her I-485 was pending for over 180

days?– What if Ame’s I-140 was approved and her I-485 was pending for over 180

days, but her I-140 was subsequently withdrawn by the employer?

AC21

Same Or Similar Occupation

• No Real USCIS Definition

• Dictionary of Occupational Titles

• Gut Test!

AC21

Example:

Ame found a new job! (Darn ) She is tired of being an outstanding immigration attorney at Bashyam Spiro and has decided to make a change. Ame takes a job in advocacy with the American Immigration Lawyers Association. Same or Similar?

– Is Advocacy as a Lawyer ‘Same or Similar’ to Practicing as a Lawyer?

– What if Ame Decided to Go From Senior Counsel to Managing Partner or to Entry-Level Associate?

AC21

Oh, It Get’s Worse!

She’s Making More $$$ and Working in Miami!

Is She Still Covered under AC21?

What if there Isn’t a Labor Certification in the Case?

NO LABOR, NO CRY!

Even if Ame was in the Employment-Based One Category (EB-1) as a Person of Extraordinary Ability,

Outstanding Researcher/Professor or Manager/Executive, Same Rules Apply

AC21

LAID OFF?

How Soon Do I Need To Find A New Job?

• Before a USCIS Request for Evidence• Before a USCIS Interview• Before USCIS Adjudication of the I-485

AC21: Common Questions

AC21 Letter To USCIS

To Send or Not to Send, That is the Question!

AC21: Common Questions

DATE Department of Homeland SecurityCitizenship and Immigration ServicesVermont Service Center75 Lower Welden StreetSaint Albans, Vermont 05479-0001 Re: I-485 Application for Adjustment of Status

Applicant: XXXXXXXUSCIS Receipt Notice: EAC-XXXXXXXX

Dear Sir or Madam: We have recently hired XXXXXX and wish to confirm that we intend to employ him permanently upon completion of his pending Application to Adjust Status. Mr.

XXXXX’s application has been pending for more than 180 days, and the position for which he was hired is similar to that upon which his Alien Labor Certification was based.

Mr. XXXXXX title is XXXXXXXX. His duties include XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. Mr. XXXXXXX was previously employed by XXXXXXXX. An I-140 Immigration Petition for Alien Worker filed by them on Mr. XXXXXX’s behalf was approved on XXXXX

2004. A copy of the I-140 approval notice and I-485 receipt notice is attached to this letter.

Mr. XXXXX’s salary is $XXXXXXX. If you should have any questions regarding this matter, please feel free to contact our office. Sincerely, XXXXXXXXXXXXXXXX

AC21: Sample Letter

Outline

Retaining Your Priority Date

Today’s Dialogue Map…

Retaining Your Priority Date

Basics

Priority Date = The Date Your Labor Certification is filed, or if a Labor

Certification is not Required, the Date Your I-140 is Filed.

Retaining Your Priority Date

Basics, Part Deux!

If Your I-140 Application is Approved, You Can Transfer the Priority Date for that Case to a New Employment-Based Case

Retaining Your Priority Date

Basics: Not So Basic!

What Happens if Your Approved I-140 Has Been Revoked?

Can You Still ‘Port’ The Priority Date?

Retaining Your Priority Date

Regulations: Cannot Carry over the Priority Date if the I-140 is Revoked

USCIS Memorandum: Cannot ‘Port’ Only Where the I-140 is Revoked for Misrepresentation or Fraud

• Memorandum Does Not Have The Force of Law

Retaining Your Priority Date

Back To Ame!

Example: As we know by now, Ame found a new job. She is now Director of Advocacy with the American Immigration Lawyers Association (AILA). AILA is willing to sponsor her in the EB-2 category. Ame currently has an EB-3 case pending with Bashyam Spiro. Can she ‘port’ her EB-3 priority date?

– Is It Necessary that the Positions between the First I-140 and Subsequent I-140 be ‘Same or Similar?’ - NO

– Ame Told The Managing Partner (Murali) to @#**#()#&$%& as She Left the Firm. We Decide to Revoke her Approved I-140! Can She Port Her Priority Date? - Inconsistent Adjudications

Questions for us?

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