It is important to note that the duties generally govern, and not specific technologies, in most cases. In many situations, therefore, this does not present a significant problem. The DOL categories are generally fairly broad. The duties listed for the original job offer should be compared with the job duties of the new position to determine within which category they fall. The later May 2005 Yates Memo makes the same references. Department of Labor system of occupational classification as a guideline. The AC21 law uses the terminology “same or similar job classification.” The Legacy INS June 2001 guidance refers us to the U.S. The AC21 determination is governed by duties of the job rather than the job title, as job titles often differ between companies, even for very similar positions. My new job has a different title, but the same basic duties as the job described in the labor certification. New Job Can be “Similar” but Differ in Some Respects The safe approach is to avoid this scenario by working for the sponsoring employer. Thus, filing a case as a future job offer, without working for the sponsor, then using AC21 to move to an alternative position, can raise questions of intent and potential fraud or misrepresentation.
The best proof that a job offer is valid, however, is working for the sponsor. Therefore, there is no legal requirement to work for the sponsor at the time of filing the labor certification (LC), or even while the I-140 or I-485 is pending. Employment-based green card applications are all based on the concept of a future job offer. Yes, one potentially could do this, but it could raise questions of whether the initial job offer from the labor certification-sponsoring employer was valid or bona fide. I never worked for my “green card” sponsoring employer. Never Worked for GC-Sponsoring Employer – Potential Fraud Often, it is best to file a new green card case as a backup, even if it is potentially possible to pursue a pending green card case. If one is laid off, it is best to get input from an experienced immigration attorney to address status maintenance and the preservation of any possible benefits from the prior green card filing.
There are some key concerns in this situation. Alternatively, if the I-140 has not been approved, there is still the possibility of using AC21, but it is much riskier. The I-140 must remain intact until the I-485 reaches the 180-day point. If the I-140 has been approved, then the concern is whether the employer will withdraw it before the 180-day point. It can be attempted however, one of the major concerns in a layoff situation is the I-140. I lost my job before the I-485 had been pending 180 days. Loss of Employment after Filing I-485, before I-140 Approval Risky It is therefore the day that the case actually was received by the USCIS that governs not the date that the USCIS generated the receipt notice. Applications are pending from the time they are filed with the USCIS. AC21 speaks in terms of the I-485 pending for 180-days or more.
It is the receipt date that governs the counting of days. Is it the receipt date or the notice date that governs the counting of the 180-day period under AC21? Frequently Asked Questions: 180 Day Portability Rule
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