AOS and Ac-21

[taz123]

Hello Guys,

I am sure you guys have come across this question on this board a million times but since I have not been able to get a comprehensive answer so far , I am posting this question again.My case is as follows:

- I work for company A. Company B is sponsoring my GC based on an existing Labour Approval they have for my job.

- My lawyer tells me that I do not have to join them for them to sponsor my GC . Is this true ?

- My lawyer also tells me that I can take advantage of AC-21 even though I am not working for my sponsoring employer currently. i.e. I can apply for an EAD and I-485 and join a third company say company C after 180 days of filing I-485.This does not make sense to me since AC-21 is meant for employees who are stuck for too long with an employer while their I-485 is being processed.In my case I have a future intent to work for company B. Can I use AC-21 privileges when I don't even work for the Company B sponsoring my GC ??

Anyone in a similar situation ?? All your answers will be greatly appreciated and very helpful.

Thanks.

[immi007]

AC21

- I work for company A. Company B is sponsoring my GC based on an existing Labour Approval they have for my job. My lawyer tells me that I do not have to join them for them to sponsor my GC . Is this true ?

* Yes, it is true. Note that GC is for a FUTURE job. Even if you are in another country, the GC can be applied, and once it is approved, you can start working for that co. It is just a coincidence that you are already in the US (most of the H-1s, L-1s) and you applied for AOS. You do not have to join them on application, rather (before AC21) you MUST join them upon approval.

- Since approvals are taking longer time and it is not your fault but of INS, under AC21 a provision was given that the applicant should have freedom to change job if it takes more than 180 days for INS to approve (or deny) the case. The scenario you (your lawyer) has suggested is not a perfect illustration of AC21. Actually , when you apply for AOS (485) you are and 'adjsutee' and 'in status' as long as your 485 is adjudicated. IF yopu also apply for the EAD (based on the 485), you are free to work for ANY employer (including the sponsor) for any type of job DURING the adjudication period. This has nothing to do with AC21. The requirement used to be that once your 485 is approved, you should join your sponsor. Now with AC21, this is a different case. Say you are already working for the sponsor. You apply for 485, and it is more than 280 days, according to AC21, you can change the job (in same or similar job) while 485 is pending. Upon 485 approval, you don't have to go back to the sponsor as you already waited for more than 180 days after applying 485.

Pl. note that AC21 law was passed, but INS publishes the regulations on how they see this law to be implemented. So, even if what you read and understand as the AC21 law, INS may not see the same way. There are many unclear things in AC21 like what if someone didn't work for the sponsor (as in your case), applied for 485, and 180 days have passed, should s/he join the sponsor upon approval or can change the employer just because 180 days have passed? lawyers currently are divided in two groups on either 'Yes' side, or no, but the final words will be of INS, and so far we haven't heard anything from them even after 2 years of AC21! So don't count everything from anybody even if it is a lawyer, because nobody has the final answer but the INS, and INS is silent!