Immigration Issues/Filing AC-21

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Question
Dear Mr. Singh,

Greetings! I am desperately seeking advice in regards to filing AC21. Kindly advise after reviewing my situation which is stated below:

I am EB2 Indian national with a May 2008 PD, applied for I-485 in Jan 2012. My previous/sponsored employer (a reputed engineering firm) whom I worked for nearly 5 years filed my PERM & I140 and then let me go in 2009 during the recession period. Immediately after filing AOS petition, I had moved to a different employer using a H1b transfer.

My previous/sponsored employer assisted me with a letter when I filed my AOS petition. The letter was written by the vice-president of the company with a good faith intent which recommended USCIS to consider my application for permanent residency, but did not confirm the job offer in the letter. The letter simply stated that I MAY be employed with them in the future and listed job duties that were mentioned in my PERM petition. The letter didn't state the salary though.

They also intend to hire me in the future depending on their future work load, but were not willing to express the intent of future job offer in the letter due to the fact that it is very difficult to predict the future.

I was expecting an RFE regarding the intent letter, but due to the retrogression I haven't received the RFE yet.

Subject to my current situation, is it possible for me to file AC21 after my application has been pending for more than 180 days. My I140 is not withdrawn and my job duties are similar to what was stated in the PERM petition.

AC21 memo issued by USCIS states that one is eligible to file AOS if the application has been pending for more than 180 days, I140 approved and at the time filing I485 both employee and employer should have a mutual intent to work with other. I am afraid of the mutual intent clause at the time of filing since my employer did not provide me with a job offer letter even though he has some good intentions of hiring me.

Please advise what issues I may have in future after filing AC21. I am sorry for the lengthy query, but would sincerely appreciate your feedback on my case. Thank you.

Answer
Dear Sree:
You are eligible to port (change employer) under AC21 if your I-485 has been pending for 180 days or more and you have an approved I-140 and/or LC.  However, you may need letter from your current employer (new employer) of it's intention to hire you on said position and said salary and an intention to continue to hire you on said position and salary once your GC is approved.

Please note, that it is the letter of intent that is required from an employer at the time of processing (RFE or Interview) of your I-485 application.  

However, you may seek professional help if you receive an RFE or an interview.

Best wishes,  

Immigration Issues

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AJAY SINGH

Expertise

Questions regarding Immigration to United States, including Removal/Deportation Proceedings, Asylum; Green Card through Family (Fiance/ee Visa, Spouse, Children, Parents, Siblings); Green Card through Employment (Labor Certification - PERM, Extra Ordinary Ability - EB1, Religious/Entrepreneur - EB4/EB5); Non-Immigrant Visas - H1B, L1, F & M, J1, J1 waiver, Humanitarian relief (Cancellation of Removal, Prosecutorial Discretion, TPS, Dream Act); Hardship Waiver (I-601/212) etc., are welcome.

Experience

Dealing with clients seeking immigration help since year 2001. Main area of practice is Immigration Law.

Organizations
Member - AILA. Bar Council of India.

Education/Credentials
LL.M - Benjamin N. Cardozo School of Law, NY. LL.B - Campus Law Center, University of Delhi, New Delhi.

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