AC21 Portability

Is immigration reform doable this year?

2009-06-19T10:59:00.000-07:00

Based on our previous post it is clear that we'll be stuck in AC21 hell for the foreseeable future unless there is immigration reform that needs to be passed by the Congress and Senate and then signed by President Obama. Now reform can happen in two ways
- A full fledged Comprehensive Immigration Reform, like that one that got filibustered in the Senate in 2007.
- Reform by tweaking the existing immigration code on the margins like Visa recapture bill S.1085, the DREAM act etc.

The unfortunate reality of life is that any reform especially immigration reform is that its a political game. Now the one and probably only thing a first term administration cares about is a second term. So Obama at the moment is doing the political calculation as to does he move on this now or not.

My opinion is that the democrats in general and Obama in particular does not have the guts to do CIR this year, there will be lots of talk, hemming and hawing but no movement, the economy is bad, Republicans will hammer him " first he sold the country to china by borrowing trillions and now he's selling out to the immigrants". In a bad economy such soundbites stick and there are mid-term elections in 2010. So my guess no big reform anytime soon. There is however a good chance to doing piecemeal reforms like Visa Recapture, so I would encourage you to contact your congresswo/man to let them know how you feel about Visa recapture bill S.1085.

Feel free to let us know your thoughts at contact@ac21portability.com

The news gets only worse :(

2009-06-03T19:22:00.000-07:00

We had some clarity and understanding of how badly broken the US legal immigration system is. We finally got some information on what the impact of the July 2007 Visa-gate fiasco was, and how badly we need reform starting with recapturing the green cards that were lost due to bureaucratic delays. There is no better source for this information than Charles Oppenheim, Chief of Immigrant Visa Control and Reporting Division at the Dept of State. Mr. Oppenheim was a guest speaker at a May 20, 2009 American Immigration Lawyers Association (AILA) meeting.
(thanks to Murthy Law firm for the posting)

Some of the highlights were as follows

Approximately 200,000 applications are pending with the USCIS
Of these about 60,000 are EB2 India and EB3 India each
China EB2 will experience same retrogression as India i.e. the cutoff date will be set to 1st Jan, 2000 (yes that was about 9 years ago)
There has been a high usage of EB1 category preventing trickle down of these visas into EB2
3200 EB2 India visas were issued this year and this is above the limit for the year.

So consider this 140,000 total visas available each year 28.6% of these go to EB1, EB2 and EB3 each and rest to other categories i.e. lets say EB2 gets 40,040 visas now no single country can get more than 7% of the visas so say EB2 India gets 2,800 green cards each year, if there is some spillover from EB1 this number can go up, I guess thats why they issued 3,200 this year. So here is the kicker if you are one of the 60,000 folks in the EB2 India category you can get your green card sometime in the next 60,000 / 2,800 = ~20 years. At this rate my three year old kid who is a US citizen can become an adult and sponsor me and my spouse :)

This New York Times editorial hits the mark on the issue, the only way ahead is to support a visa recapture bill to recapture 500,000 visas that were not issued in the past 10 years due to bureaucratic delays. By the way this is nothing new, Bill Clinton signed a visa recapture bill in 2000 that ended in 2005 and hence this new logjam. The only thing I can say is contact your Congresswo/man and Senators, let them know your issues and press for Immigration Reform. There is a bill currently in the Senate Judiciary Committee S. 1085 includes provisions for Visa Recapture. Contact your representative and ask them to support this bill, the sooner you get your green card the sooner you can stop visiting our site ac21portability.com

cheers!!

Employers and I-140 withdrawls

2009-05-18T18:54:00.000-07:00

Since we opened our ac21portability.com website about a month ago we have heard a lot of frustration, anger and worry from folks regarding the fact that their employers will withdraw the I-140 if the person leaves the company, in some cases some unscrupulous employers even threaten the employee, forcing them to continue working. We want to clear up some misconceptions and provide all possible information so you can make an informed decision. The key point we want to stress is:
If you have an approved I-140 and 180 calender days have passed since you filed your I-485 (based on the receipt date) then the law is on your side.

- The I-140 belongs to the employer and they are perfectly within their rights to revoke / withdraw it if you leave them.

- The I-485 belongs to you and as long as you had an approved 1-140 at the time of filing and 180 days have passed since the receipt date, even if your employer withdraws the 1-140, you are perfectly within your rights to live and work in the US (as long as its a same/similar role)

- If your employer threatens you, they are wrong and do not get intimidated.

- Yes if your I-140 is withdrawn, its is much more likely you will get an RFE, since the USCIS wants to make sure you ported off to a same or similar job OR in worst case you may get a Notice of Intent to Deny (NOID), this happens in some cases probably due to the fact that the officer was not aware of AC21, lack of training etc. The USCIS Ombudsman's has a post on this and there is good reason to believe that information regarding AC21 is disseminating to all the officers, here is the Ombudsman's memo. In the event of a NOID you have to file a Motion to Reopen (MTR), again as long as you were in a same/similar role, you case will be given a fair hearing. Its a hassle and a headache but ultimately we believe the law is on your side.
Here is our scenarios and strategies document for further reading if your situation is not exactly as mentioned above. Our next post we will talk in detail about how to respond to RFE's and MTR's. We also hope to put up documents for these. Meanwhile keep telling us about your situations: contact@ac21portability.com
Just in case you were wondering here is what an RFE related to employment looks like

again please feel free to reach out to us at contact@ac21portability.com or browse over to all available resources at ac21portability.com

Our first (actually second) post on AC21Portability

2009-05-15T18:49:00.000-07:00

F1, H1B, H4, L1, AP, EAD, AC21, RFE, MTR the alpha-numeric soup has in many ways come to define the life of many skilled immigrants in the United States. Many of us have come to live with the uncertainty and vagaries of the USCIS and the Dept. of State just like the farmers in parts of the world on the monsoon. When it rains it pours, else its a decade of drought.

We are like many others who are waiting in line for the green card, severely retrogressed and pondering our options. Many of us want to start our businesses, change jobs either voluntarily or more likely in this economy involuntarily. There are options available to folks under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313),(popularly known as AC21). However as with most laws and probably everything in life there are gray areas, loopholes and gotchas. Especially when it comes to immigration not following the law inadvertently can have serious life changing consequences for the person and her/his family. Hence this resource to help others and learn from you how you are being affected or have been affected, your stories, your issues, your run-ins with the USCIS.

Here is our site in case you still have not stumbled upon it ac21portability.com

This is your resource, its intended to be used as such and not to be substituted for legal advise. So we encourage you to share your questions, issues and stories with other people in the same boat. Use the forums or email us anonymously and we will try and help out as much as we can, all of us may learn more and help others for it sure seems like a long ride to the finish line.

contact@ac21portability.com

Everything you wanted to know about AC21 Portability

2009-04-25T10:05:00.000-07:00

What is AC21 Portability?
AC21 portability is the ability of individuals to change employers under certain circumstances while they are in the process of adjusting status (I-485) to obtain a permanent residency in the United States (green card), as laid out under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21).

Why this blog?
This blog is intended to be complimentary to the AC21 Portability website. This website was built as an attempt to create a comprehensive guide to navigate the tricky issues related to employment changes under the AC21 laws and a place to ask questions, share views, opinions on this and related topics with other people who are in same or similar situations. I am personally an individual who has faced these issues and am often annoyed by the conflicting and wrong information that is available.

What information is available on ac21portability.com?
While I am constantly updating the information, the site currently has the following
- A comprehensive FAQ? (send me more suggestions)
- A Forum to ask questions and get responses from the community
- All the USCIS Memos and field guidelines that are currently governing AC21 portability regulations.
- Links to related informational websites, government organizations, advocacy groups, law firms.

Hope you find it useful, enjoy and please feel free to send me any feedback on the website contact tab
AC21 Portability

Note: This blog and the website for informational purposes only, the laws and regulations in this area are often changing. Do not rely on this website or forums for definitive answers please use a competent immigration lawyer to handle any specific issues.