| Q. |
Getting laid-off: Continue with EB1C or file family-based AOS?
Here are some facts:
- I possess a valid L1A visa. My company filed a concurrent EB1C petition in May'08. Both my I-140 and I-485 are currently pending
- My company is downsizing and has given me 2 months notice to leave
- I have a USC spouse and I have an approved I-130 petition
I see two options ahead of me:
Option 1 - Immediately file a family-based I-485 petition using the approved I-130
Option 2 - Spend the next couple of months searching for a new job and use AC-21 to switch (I will be over the 180 day limit since filing I-485 but my I-140 may remain pending)
What should I do? If I go with Option 1, should I ask the company lawyer to revoke my EB1C petition or should I pursue two parallel AOS applications at once (I know many lawyers discourage multiple AOS applications).
User's Location:
San Francisco, California, United States of America
Category:
Employment-based Green Card
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| A. |
I would go with the AC21 portability because the resulting green card will be unconditional, unlike the marriage-based green card (unless you have been married for more than two years). The EB1C petition is not your petition to withdrawal (not revoke); it belongs to your employer, so it is up to them. Furthermore, if your I-140 petition is withdrawn, you may lose the ability to port to a new employer/sponsor. There is nothing wrong with having multiple petitions; there is no reason to have multiple I-485 applications. Just make sure that your new employer/sponsor notifies USCIS with an offer of employment letter, clearly identifying the pending petition and application by receipt number. |
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Fredrick W. Voigtmann
Immigration Lawyer
Inman and Associates, P.C.
(310) 274-7111
www.igvlaw.com
Disclaimer: This information is general in nature and is not intended, nor should it be construed, as legal advice. This post does not create any attorney-client relationship between us. For specific advice about your particular situation, consult an attorney.
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| Q. |
Thanks for your response.
Can you please advise how USCIS assesses if the new job is "similar" in case of AC21 portability for a pending EB1(C) petition? Is it sufficient if the new job is in a managerial capacity and similar pay? Does it have to be in the same industry?
Finally, what are the risks of exercising AC21 with a pending I-140 (with I-485 pending over 6 months)? |
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| A. |
Since there are no AC21 regulations, we can only assume that the USCIS will use the SOC/DOT job classification system to determine if the jobs are the same or similar.
I would argue that any managerial or executive position, regarding of the industry, would be classified under the same category. Of course, the actual job duties, the SOC/DOT job code, and the rate of pay are all relevant to the issue.
If the I-140 is still pending, the USCIS will look at it to see if it was approvable, i.e., they will adjudicate the I-140 petition even though you are going to port to a new employer. The new employer must send a letter to USCIS describing the same/similar occupation. |
| |
Fredrick W. Voigtmann
Immigration Lawyer
Inman and Associates, P.C.
(310) 274-7111
www.igvlaw.com
Disclaimer: This information is general in nature and is not intended, nor should it be construed, as legal advice. This post does not create any attorney-client relationship between us. For specific advice about your particular situation, consult an attorney.
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