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matreen

10-17 01:58 AM

Guys,

I have already invoked my AC21 6 months before and joined a small consulting company, after four months I had an offer from client to join, I decided to join client as full time employee and working from past two months. Planning to send AC21 document by next month including offer letter etc.,

Now, my question is I have a part time job oppertunity to work from home for couple of hours in the weekend (tech support job - pay is not that great but it helps with current economic crises).

Can I allowed to work on part time job while I am working as a full time employee using AC21? (Remember I am on EAD - No more H1)

Is that going to cause any problem to my 485 process?

Will that be OK to run two payrolls on my social 1. Full Time 2. Part time?

I would appreciate your response as soon as possible, because I need accept the offer and follow the legnthy process - background check etc.,..

Thanks,

M



Issue/Background:
It seems USCIS is not following AC21 regulations in some cases � especially when underlying I140 is revoked by previous employer � and are incorrectly denying I485 applications. As we know, AC21 regulations and related guidelines, provide some relief and allow job changes without affecting the I485 application. As per these rules if the employee changes employment after 180 days of submitting I485 application, there is no need to redo I140 even-if old employer revokes the old I140.

In recent days USCIS seems to be denying lot of I485 applications � ignoring their own AC21 regulations. A few of IV volunteers (pd_recapturing, gc4me, chanduv et al) have started an effort to address this. You can get more info on this, at this thread: http://immigrationvoice.org/forum/showthread.php?t=21716.

This issue can affect a lot of us and it negates all the flexibility/relief that we acquired by getting EAD�s and advantages we got thru recent admin reform.

What needs to be done:
After some initial discussions and planning (thanks to pd-capturing, chandu, et al) it is decided to write letters to Ombudsman and service center heads to point out this and request them to correct it ASAP. Please participate and send letters. To succeed we need to send it in thousands.

Pasting the letter and the addresses below.

More info: (thanks to gc4me for addresses and letter template):
======================
Everyone please send the letter/email to 3 persons.
1. Ombudsman
2. Director, NSC
3. Director, TSC
======================
Ombudsman:
cisombudsman@dhs.gov
Mailing Address:
Citizenship and Immigration Services Ombudsman
ATTN: Recommendations
United States Department of Homeland Security
Mail Stop 1225
Washington, D.C. 20528-1225
=======================
Nebraska Service Center
Director: Gerard Heinauer
General Correspondence (Inquiries) (Sending applications or petitions to this address will delay their processing)

USCIS NSC
P.O. Box 82521
Lincoln, NE 68501-2521
NOTE: If using overnight delivery by any private service provider, send your package to:
USCIS
Nebraska Service Center
850 S Street
P.O. Box (Insert Correct P.O. Box Number)
Lincoln, NE 68508

Be sure to include the appropriate P.O. Box number on the shipping label.
Customer Feedback:
Contact:
Assistant Chief
Internal Security and Investigative Operations
USCIS, 111 Massachusetts Avenue, NW
Suite 7000
Washington, DC 20529
or email: USCIS-COMPLAINT@DHS.GOV
=====================
Director: David Roark
General
Correspondence:
USCIS TSC
PO Box 851488
Mesquite, TX 75185-1488
Customer Feedback:
Contact:
Assistant Chief
Internal Security and Investigative Operations
USCIS, 111 Massachusetts Ave., N.W.
Ste 7000, Washington, DC 20529
============================
Letter
============================
Date: Today()

To
Mr. Michael Timothy Dougherty
The Ombudsman
Citizenship and Immigration Services Ombudsman
United States Department of Homeland Security
Mail Stop 1225
Washington, D.C. 20528-1225

Re: Issues caused by USCIS not following AC21 guidelines

Dear Sir,
This is to bring your attention to the issues caused by USCIS not following AC21 guidelines.

The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) allows for a change of employer on any I-485 Adjustment of Status Application that has been pending for 180 days or more, without the need to file a new I-140 petition, provided the applicant�s new employment is in a similar/same occupation.

According to the Memo released by William R Yates on August 4th 2003, the original I-140 is valid if it is approvable and form I-485 has been pending for more than 180 days. (Attached for your reference is the memo dated August 4th 2003 from William R Yates and the follow-up memo dated May 12th 2005 with relevant sections highlighted).

Due to unreasonable delays caused by retrogression, many candidates have lawfully changed employers in accordance with the AC21 statute. Even though there is no requirement that USCIS be notified after a job change, some applicants have done so to prove that they are in compliance with this regulation. If the previous employer has withdrawn the previously approved I-140, AC21 guidelines state that if the applicant has not submitted evidence of a new qualifying offer of employment, the applicant be sent an NOID (Notice of Intent to Deny) to deny the I-485 application or a RFE (Request for Evidence) . If the response to the NOID/RFE is timely and indicates that the alien has a new offer of employment in the same or similar occupation, USCIS may consider the approved Form I-140 to remain valid with respect to the new offer of employment and may continue regular processing of the Form I-485.

Over the past few months, a disturbing pattern has emerged with cases where the applicant has changed employers. USCIS has started to deny I-485applications where the underlying I-140 has been withdrawn by the previous employer without issuing an NOID or RFE. Even those applicants who have notified USCIS of change in employers have had their I-485 denied.


After the denial of I-485, the applicant has to file a MTR (Motion to reconsider) with USCIS to re-open the case. In addition to the financial burden of filing and legal fees, the applicant has to stop working because of the denial of the I-485 until the case is re-opened. This could be anywhere from a month to a few months. Needless to say, employers are unwilling to keep the job position open for such a long period and the applicant in most cases is looking at potential loss of employment. The applicant who has followed the law to the fullest extent is unfairly punished on account of USCIS not following the AC21 provisions.

This is a request for you to intervene to ensure that the AC21 regulations are followed when adjudicating an I-485 application. If the applicant notifies USCIS of a change in employment under AC21, this should be added the applicant�s physical file and electronic records. If there is no such notification and the previous employer withdraws the I-140, the applicant should be issued a NOID/RFE instead of denying the I-485 application.


Should you have any further questions, please do not hesitate to contact.

Thank you in advance for your kind attention and cooperation in this matter.

Thanks,

Your Name
Your Address
Your Phone Number

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Libra

09-10 03:36 PM

thank you Guest007.

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nashorn

08-12 02:45 PM

Where did you file your 485, and where is your 140 approved or pending, NSC or TSC? My impression is if your 140 is approved or pending at TSC, but you filed your 485 at NSC, your application will be transfered to TSC, and TSC will cash your check and issue your receipt. That is going to take more time. Correct me if i'm wrong. Any July 2nd filer in this situation has got receipt or check encashed by TSC?

I know a friend whose application was recieved at 10:45 AM on July 2nd at NSC, he got the receipt number in July III week, our application was received at 8:26 AM on july 2nd, nothing till date, checks haven't been cashed...no updates!!

So dunno how they are picking the applications, anyways there is good news that they are working on the July 2nd applications, and more & more of us are receiving the receipts numbers.:)

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aray

08-14 08:37 PM

I totally agree with you. I have read the original message several times too and I am sure they mean June 2008. Our only hope is if they meant Mexico only, and not al EB categories.



I have read the Original quote several times and dont see how they mean June 2007, To me it is clear that they are talking about June 2008.

Sorry to sound so negative, but I think we are looking at something like Sept 2001 for EB3-I in Oct bulletin.

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mihird

08-01 10:52 PM

Again, no journalism experience, but good at composing English, in general, and vast knowledge on USA, global economics, the H1 visa program etc.. Have written to US Senators in the past.

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jung.lee

04-04 12:55 AM

:confused::confused:We cannot start a S-corp on EAD. Need to be GC holder or US Citizen.
...
Should a Corporation's owners later wish to be taxed as an S-Corporation, they would file a "Subchapter S" federal tax election (Form 2553) within 75 days of incorporating or within 75 days of the beginning of the calendar year. To do this, the Corporation would need to have less than 100 owners, all of whom must be either U.S. Citizens or permanent resident aliens ("green card" holders). Once the "S" tax election is made, the return to be filed is the 1120 "S", rather than the 1120. Whether or not you decide to be taxed as an S-Corporation, your company is still a "General Corporation" in the eyes of the state of incorporation.
...
[
But we can setup Solo or Partership or C-Corp. Don't run into legal issues by setting up S-Corp on EAD, before getting GC.

Good luck.

I am excerpting Internal Revenue Code Section 1361 below:
Internal Revenue Code
� 1361 S corporation defined.


(a) S corporation defined.

(1) In general.
For purposes of this title, the term �S corporation� means, with respect to any taxable year, a small business corporation for which an election under section 1362(a) is in effect for such year.

(2) C corporation.
For purposes of this title, the term �C corporation� means, with respect to any taxable year, a corporation which is not an S corporation for such year.

(b) Small business corporation.

(1) In general.
For purposes of this subchapter, the term �small business corporation� means a domestic corporation which is not an ineligible corporation and which does not�

(A) have more than 100 shareholders,

(B) have as a shareholder a person (other than an estate, a trust described in subsection (c)(2) , or an organization described in subsection (c)(6) ) who is not an individual,

(C) have a nonresident alien as a shareholder, and
(D) have more than 1 class of stock.

(2) Ineligible corporation defined.
For purposes of paragraph (1) , the term �ineligible corporation� means any corporation which is�

(A) a financial institution which uses the reserve method of accounting for bad debts described in section 585 ,

(B) an insurance company subject to tax under subchapter L,

(C) a corporation to which an election under section 936 applies, or

(D) a DISC or former DISC.

There is no mention here that the "resident" must be a permanent resident.

Here is an excerpt of the Federal Regulation that defines who is a "resident alien" for taxation purposes:

Reg �1.871-2. Determining residence of alien individuals.
Caution: The Treasury has not yet amended Reg � 1.871-2 to reflect changes made by P.L. 108-357

(a) General. The term �nonresident alien individual� means an individual whose residence is not within the United States, and who is not a citizen of the United States. The term includes a nonresident alien fiduciary. For such purpose the term �fiduciary� shall have the meaning assigned to it by section 7701(a)(6) and the regulations in Part 301 of this chapter (Regulations on Procedure and Administration). For presumption as to an alien's nonresidence, see paragraph (b) of �1.871-4.

(b) Residence defined. An alien actually present in the United States who is not a mere transient or sojourner is a resident of the United States for purposes of the income tax. Whether he is a transient is determined by his intentions with regard to the length and nature of his stay. A mere floating intention, indefinite as to time, to return to another country is not sufficient to constitute him a transient. If he lives in the United States and has no definite intention as to his stay, he is a resident. One who comes to the United States for a definite purpose which in its nature may be promptly accomplished is a transient; but, if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and to that end the alien make his home temporarily in the United States, he becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consummated or abandoned. An alien whose stay in the United States is limited to a definite period by the immigration laws is not a resident of the United States within the meaning of this section, in the absence of exceptional circumstances.

Here is the relevant Federal Regulation on Proof of Residence for determining status for tax purposes:

Reg �1.871-4. Proof of residence of aliens.
(a) Rules of evidence. The following rules of evidence shall govern in determining whether or not an alien within the United States has acquired residence therein for purposes of the income tax.

(b) Nonresidence presumed. An alien, by reason of his alienage, is presumed to be a nonresident alien.

(c) Presumption rebutted.

(1) Departing alien. In the case of an alien who presents himself for determination of tax liability before departure from the United States, the presumption as to the alien's nonresidence may be overcome by proof�

(i) That the alien, at least six months before the date he so presents himself, has filed a declaration of his intention to become a citizen of the United States under the naturalization laws; or

(ii) That the alien, at least six months before the date he so presents himself, has filed Form 1078 or its equivalent; or

(iii) Of acts and statements of the alien showing a definite intention to acquire residence in the United States or showing that his stay in the United States has been of such an extended nature as to constitute him a resident.

(2) Other aliens. In the case of other aliens, the presumption as to the alien's nonresidence may be overcome by proof�

(i) That the alien has filed a declaration of his intention to become a citizen of the United States under the naturalization laws; or

(ii) That the alien has filed Form 1078 or its equivalent; or

(iii) Of acts and statements of the alien showing a definite intention to acquire residence in the United States or showing that his stay in the United States has been of such an extended nature as to constitute him a resident.

(d) Certificate. If, in the application of paragraphs (c)(1)(iii) or (2)(iii) of this section, the internal revenue officer or employee who examines the alien is in doubt as to the facts, such officer or employee may, to assist him in determining the facts, require a certificate or certificates setting forth the facts relied upon by the alien seeking to overcome the presumption. Each such certificate, which shall contain, or be verified by, a written declaration that it is made under the penalties of perjury, shall be executed by some credible person or persons, other than the alien and members of his family, who have known the alien at least six months before the date of execution of the certificate or certificates.




(c) Application and effective dates. Unless the context indicates otherwise, ��1.871-2 through 1.871-5 apply to determine the residence of aliens for taxable years beginning before January 1, 1985. To determine the residence of aliens for taxable years beginning after December 31, 1984, see section 7701(b) and ��301.7701(b)-1 through 301.7701(b)-9 of this chapter. However, for purposes of determining whether an individual is a qualified individual under section 911(d)(1)(A), the rules of ��1.871-2 and 1.871-5 shall continue to apply for taxable years beginning after December 31, 1984. For purposes of determining whether an individual is a resident of the United States for estate and gift tax purposes, see �20.0-1(b)(1) and (2) and � 25.2501-1(b) of this chapter, respectively.


In summary, I submit to you that if you work in the US for more than 6 months out of a given year, you are a resident alien, and therefore are eligible to set up an S-Corp.

Since I am still learning about this, any input/feedback/logical arguments with relevant proof/citations would be appreciated!

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trailblazer

07-21 03:45 PM

Joined IV recently. i am in Ventura county

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andy garcia

10-01 10:23 AM

Some unused EB #s were recaptured for families in following year. For example, in 1994 there were 29,430 (column 2) unused EB #s. However, 27,721 (= 253,721 (column 3) - 226,000 (family quota)) of these #s were recaptured for families. Thus, only 29,430 - 27,721 = 1,709 (column 4) were un-recaptured.

Also, 50,000 unused EB #s from 01-04 were recaptured for Schedule A.

Finally, unused EB #s in 99 and 00 were recaptured, hopefully for EB.

Thus, unused EB #s are more important then un-recaptured EB #s (mentioned above) since some of them have not been recaptured for EB.

The unused EB #s is 506,384 (total column 2) - 98,941 (99 recaptured for EB) - 31,098 (00 recaptured for EB) = 376, 345

Annual Report to Congress June 2007 (http://www.dhs.gov/xlibrary/assets/CISOMB_Annual_Report_2007.pdf)

Macaca;

Here is where the confusion lies with respect to unused, wasted, etc.

The Immigration Act of 1990 (P.L. 101-649) restructured the immigrant categories of admission and made other modifications to the Immigration and Nationality Act.
The 1990 Act divided the preference classes into two general categories: family-sponsored(FS) and
employment-based(EB). Limits on the number of visas issued in these two categories are determined annually.
FS limits�The worldwide level for FS preferences is calculated as:
480,000 minus the number of aliens who were issued visas or adjusted to legal permanent residence in the previous fiscal year as

immediate relatives of U.S.citizens
children born subsequent to the issuance of a visa to an accompanying parent
children born abroad to lawful permanent residents on temporary trips abroad

plus unused EB preferences in the previous fiscal year.
The 1990 Act specifies that the family-sponsored limit may not go below a minimum of 226,000 in any year.

EB limits�The 1990 Act specifies that the worldwide limit on EB preference immigrants is equal to 140,000 plus unused FS-preference visas in the previous year.

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saimrathi

07-06 11:33 AM

Agreed, that would be the biggest impact... But, not all of us would be able to get an opportunity elsewhere in the world.. For example, doctors, scientists... not many countries match US infrastructure..

This is only my view...

As the saying goes..."Justice delayed is Justice Denied"

Considering our opportunity cost, many of us may be better off packing our bags and heading back - this may have an impact on the feds, the companies and people at large who think that WE are a burden on the society. All these artificial barriers and hurdles are a reflection of this.
Its quite apparent that there is no end game in sight, there is no motive here(ref to subash and gandhi message by asharda), no end game...it can only get worse. The Feds have succeed in Scr....wing US.

bottom line - Do we really add value to the society here?
convince the people and this will be the ONLY solution to our problems.

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kshitijnt

05-09 04:44 AM

People who are on H4 ITIN couples, should seriously consider discrimination based litigation. I am fully sympathetic to their situation. Not long ago I was in the same boat. Make it harder for the government to make dimes on your money. They wont make it harder for you then.

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gbof

02-23 12:58 PM

people,

i just returned from an infopass meeting... the guy i talked to said that they recently have a directive from the DHS/USCIS that they want to separate the legal stuff from the illegal stuff and hence they are planning to adjudicate a record number of EB apps in the next quarter or two... does anyone else concur? is this true or were my ears just ringing in that meeting?

--shark

A Lot goes on in the last 2-qtrs, especially in last qtr(july-sept). I won't be surprised if he is right. There are many loop-holes they may want to plug before CIR or any immigration reform takes shape.

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ashutrip

06-22 10:35 PM

Is it true that people who have applied in march are screwed....as per on blog website.....March applications are on hold....they have divided the applications in two batches
1. Jan thru March
2. April thru June
if its tru its bad news for we march guys

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leoindiano

06-11 09:19 AM

i dont agree with you, These things are against the law.

1)
All we need is a recapture. Lets concentrate on the bills in congress and senate and get them passed. This needs very less effort than what you prescribed.
2) If 1 fails,
There is no descrimination as such, this is more of a outdated law and bureacratic delay caused wastage of numbers, lets fight it in legal system. Some asylum case won against wastage, why not ours? We have big numbers, If everyone can contribute, this will happen. Hire the same lawyer and am sure he/she wont charge more than what(if any) they charged to an asylum case....

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Macaca

09-13 09:45 PM

After Protest, U.S. to Take Green Card Applications (http://immigrationvoice.org/forum/showpost.php?p=121583&postcount=753) By Xiyun Yang Washington Post Staff Writer, July 18, 2007
Government Does U-Turn on Green Cards (http://immigrationvoice.org/forum/showpost.php?p=121613&postcount=755) By SUZANNE GAMBOA (sgamboa@ap.org) | Associated Press Writer, Jul 17
U.S. Reverses Visa Stance In Bid to Fix July Mix-Up (http://immigrationvoice.org/forum/showpost.php?p=122142&postcount=760) By Miriam Jordan (miriam.jordan.wsj.com) | The Wall Street Journal, July 18 2007
U.S. immigration relaxes rule for "green card" seekers (http://immigrationvoice.org/forum/showpost.php?p=121600&postcount=754) By JoAnne Allen (joanne.allen@reuters.com) | Reuters, Jul 17, 2007
Microsoft backs cricket to woo Indian employees (http://immigrationvoice.org/forum/showpost.php?p=162410&postcount=124) By Daisuke Wakabayashi (Daisuke.Wakabayashi@reuters.com) | Reuters, Mon Sep 10, 2007
Skilled Workers Win Reversal of Decision on Green Cards (http://immigrationvoice.org/forum/showpost.php?p=122141&postcount=759) By JACQUELINE PALANK (jpalank@nytimes.com) | New York Times, July 18, 2007

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Robert Kumar

03-14 05:51 PM

In the last 1 months, how mcuh time is it taking for just the labor to be cleared. Not the pre-labor work. Just labor.
Thank you,.

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saiju

07-21 02:43 AM

Any possibility for getting this amendment again, so that the core members can make an action plan on this.

Also is there any chance for new amendment like this in the near future.

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nyte_crawler

04-25 11:51 AM

Maybe highly intelligent people make irrational decisions.:)

The current Priority date based Labor application system makes the most higly skilled immigrants bonded laborers where the employers can exploit them. This especially happens to people who are highly intelligent but donot try short routes to Green card and do not think of jumbing ahead of others in the que or moving to other companies to get green card processed faster. Reality dawn sonly when nearing the six year completion date of H1B.

We need to change this unjust immigration system so that atleast in future merit gets rewarded and people who really deserve get their green card.

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gc_on_demand

05-27 03:47 PM

If I may suggest it may help our funding drive if we allow smaller contributions. (20$ or 10$) both recurring and one time.

I know at least a couple of people who would do a 20$ 2-3 times a year but won't do a $50. Anecdotal but may hold true for a lot more people.

-dslamba

We should do that .. Only fear is people who are contributing 50 will change to 20.. and what if those new members wont contribute ?

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pappu

09-01 09:17 AM

Everyone getting receipt notices, and not coming to the rally, (not coming to the rally -most on tracker threads), please at least consider contributing to the rally once you get your notice or FP done or get EAD!. The rally cost is huge and we can do much more if people can contribute generously.

We helped you get to the stage so that everyone can file I485s. It pains us in the core team see how our members who used to tell us all the time to at least allow them to file I485 and then they will wholeheartedly take part and support IV have turned their backs on us now. With our work and victory in Visa bulletin fiasco, we even answered people who used to ask us for our achievements before they could contribute.

Now it is your opportunity to deliver.

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pappu

07-24 11:14 AM

john2255, pls update your profile with full information. We do not encourage or answer anonymous posters or emails.
Do not start an action item on your own. Consult us before posting any such message so that it is aligned with IV work.

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santb1975

06-03 01:30 PM

This is great

Contributed $100 just now
(Receipt ID: 3118-4400-XXXX-XXXX).


------------
$200 contributed so far

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