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View Full Version : Possible Lay off before 6 months of 485. Need help from Guru's


desixp
09-30-2007, 01:50 AM
Here is my situation:

1) My 1-140 is approved(Approved on March 30th 2007 EB3)

2) I-485 is filed on July 27th(Have got receipt notice)

3) Have 3 yrs H1B extended recently till June 2010.

4) Application is only pending 3 months, and my employer may be thinking of laying by moving operations to India.

5)So, i may not have Job after Oct 31st from same employer so, I'm trying to find out what are the options available for me.

I have not applied for AP or EAD. I will be doing in this coming week.

Any input would be appreciated.

Thanks in advance.

Made one time $200 contribution.

PD : MAY 2004, EB3
I140 Approval date : March 30 2007, Nebraska
I-1485 Application recieved at uscis : july 27 2007
RN date : Sep 21st 2007
FP date : ??

Attended DC Rally.

loudoggs
09-30-2007, 02:10 AM
Hi!

Do the following things:-

1. Get a termination letter from you current employer showing the termination date. This letter can be used to prove your intent to join the GC employer, if at all USCIS issues an RFE on your I-485.
2. Find a new job and join the new company using H-1B transfer.
3. After 180 days have passed since I-485 RD, send a letter to USCIS informing them about your change in "permanent" employment.

The most important thing to do right now is to be in legal status by transferring your H-1 on November 1, 2007.

If USCIS issues you an RFE on I-485 in the future, asking you for reason for change of jobs < 180 days, then you can respond by attaching the current company's termination letter. This goes to prove that you had the intent to join the GC sponsoring company but business went sour and they had to let you go.

This is my opinion. Please do consult a lawyer before you make a final decision.

Hope this helps. Good luck!

Here is my situation:

1) My 1-140 is approved(Approved on March 30th 2007 EB3)

2) I-485 is filed on July 27th(Have got receipt notice)

3) Have 3 yrs H1B extended recently till June 2010.

4) Application is only pending 3 months, and my employer may be thinking of laying by moving operations to India.

5)So, i may not have Job after Oct 31st from same employer so, I'm trying to find out what are the options available for me.

I have not applied for AP or EAD. I will be doing in this coming week.

Any input would be appreciated.

Thanks in advance.

gc@waiting
09-30-2007, 06:40 AM
What if in the above scenario, if the 140 is still pending, would the same thing apply as well?

Gravitation
09-30-2007, 10:28 AM
The steps described below are _not_ going to save the current I-485. If employment is terminated within 180 day of filing I-485, there's absolutely no way to save I-485. The only possibility is that the current employer keeps you on payroll somehow.

BTW, If I-485 is filed, you do have the legal status till it's adjudicated one way or another (the status is a parolee). It's still advisable, of course, to transfer H1B.

Hi!

Do the following things:-

1. Get a termination letter from you current employer showing the termination date. This letter can be used to prove your intent to join the GC employer, if at all USCIS issues an RFE on your I-485.
2. Find a new job and join the new company using H-1B transfer.
3. After 180 days have passed since I-485 RD, send a letter to USCIS informing them about your change in "permanent" employment.

The most important thing to do right now is to be in legal status by transferring your H-1 on November 1, 2007.

If USCIS issues you an RFE on I-485 in the future, asking you for reason for change of jobs < 180 days, then you can respond by attaching the current company's termination letter. This goes to prove that you had the intent to join the GC sponsoring company but business went sour and they had to let you go.

This is my opinion. Please do consult a lawyer before you make a final decision.

Hope this helps. Good luck!

my2cents
09-30-2007, 11:14 AM
First of all.

1- You don't need to be on payroll GC sponsoring company as it is a future job. You may not have to work at all until GC approved. Law states that at the time of filing I-485 you must have a intention of joining GC sponsoing company and company has intention to hire you.

2- You may invoke AC-21 as long as 2 conditions satisfies.
- As long as I-140 is approved AND I-140 is not revoked by your employer before 180 days. It means employer should not submit a letter to INS for revoking the I-140 before 180days. After 180 days, your I-140 is portable

- As long as I-485 remains pending for 180 days. It may be pending for 90 days now but as long as it does remain pending for 180 days you should be fine. Chances of approving/denying 485 within 6 month is real small.

Yes, you can get in trouble if your GC approved in less than 6 month AND you don't work on sponsoring company after getting ur GC.

3- You have 2 options.
- You can search for a new job in similar job. Either on EAD or H1B. If you don't have EAD now then wait for it otherwise u can join a company who can transfer ur H1b. You will be/always in STATUS either a adjustment applicant or H1b since dual status are allowed.

anilvt
09-30-2007, 12:12 PM
my2cents,

please clarify thanks!

u said ....

Yes, you can get in trouble if your GC approved in less than 6 month AND you don't work on sponsoring company after getting ur GC.

few questions?

q?> what happens after 180 days? can employer revoke 140 after 180 days?

q?> what letter or documentation we need to get from the employer after 180 days if he is willing to let us go? since my employer is good dude and told me to get out after 180 days and do what u wanna do in life ahead.

q?> what we need to do after 180 days? if we changes employer?
I mean any forms to fill and whom/what/where to notify?

q?> can we be out of job/vacation/no intent to work for 2-4 months after 180 days?

q?> someone mentioned that u need to be with ur employer otherwise issue when we apply for citiizenship? since the world jobs/companies are chaninging dynamic ..outsourcing..out of bussiness

lvaka
09-30-2007, 01:38 PM
1. your 485 processing will not be affected if the 140 is revoked after 180 days.

2. U need not have any documentation from ur current sponsoring employer. Just get ur experience letters for future employment. Nothing in specific.

3. officially u need not inform USCIS of ur change of jobs unless you get a RFE. Some of the lawers might suggest you to file a letter that you moved ur job.

4. you can be out of job or on vacation after 180 days.. but u shud be careful about when ur 485 be abjudicated. Coz by the time if ur PD becomes current and 485 is getting approved u shud be in a similar job. Ofcourse, this is also required only if u get an RFE or if u think ur sponsoring employer would have notified USCIS abt the termination of 140 even after 180 days which will invoke a RFE from USCIS. Otherwise without any communication to USCIS they will simply approve ur 485.

5. Citizenship :-).... got a longway to go. We really dont know what we want to do down the line 10 yrs from now!!...

my2cents,

please clarify thanks!

u said ....

Yes, you can get in trouble if your GC approved in less than 6 month AND you don't work on sponsoring company after getting ur GC.

few questions?

q?> what happens after 180 days? can employer revoke 140 after 180 days?

q?> what letter or documentation we need to get from the employer after 180 days if he is willing to let us go? since my employer is good dude and told me to get out after 180 days and do what u wanna do in life ahead.

q?> what we need to do after 180 days? if we changes employer?
I mean any forms to fill and whom/what/where to notify?

q?> can we be out of job/vacation/no intent to work for 2-4 months after 180 days?

q?> someone mentioned that u need to be with ur employer otherwise issue when we apply for citiizenship? since the world jobs/companies are chaninging dynamic ..outsourcing..out of bussiness

my2cents
09-30-2007, 01:51 PM
my2cents,

please clarify thanks!

u said ....

Yes, you can get in trouble if your GC approved in less than 6 month AND you don't work on sponsoring company after getting ur GC.

few questions?

q?> what happens after 180 days? can employer revoke 140 after 180 days?
Company can revoke I-140 anytime (revoking approved I-140 will be called revoke, pending I-140 will be called withdraw). It will have serious impact except if revoking has been submitted after 180 days of receipt date of 485.

q?> what letter or documentation we need to get from the employer after 180 days if he is willing to let us go? since my employer is good dude and told me to get out after 180 days and do what u wanna do in life ahead.

you don't need any documentation from him as such from old employer. Employer are not obliged to revoke I-140 as such ..so it is good that he doesn't revoke ur I-140 after 180 days. even if he revokes then INS will send u NOID (notice to deny ) and then u have to submit the evidence that u are working in similar job in other company


q?> what we need to do after 180 days? if we changes employer?
I mean any forms to fill and whom/what/where to notify?

By law, it is not mandatory to inform. but it is expected that u will inform. if u get a RFE in btw (for latest pay stub) then u can submit it at that time.
as such no form to fill.

q?> can we be out of job/vacation/no intent to work for 2-4 months after 180 days?

again depend upon the situation. u can be out of job/vacation/no intent for 2-3 month as long as u have bonafide permannet offer in silimar job.

whole idea is intention, but if you are not working for GC employer then how will be u supporting urself until u r out of conutry. remember you/sponsoring compnay have to have intention of joining/hiring after green card.

u r in status as long as I-485 is pending

q?> someone mentioned that u need to be with ur employer otherwise issue when we apply for citiizenship? since the world jobs/companies are chaninging dynamic ..outsourcing..out of bussiness

Again, idea is intention. techically u can leave the job in 1 day after getting ur GC but depend upon what reason u have left that will determine .
it is ur burden to proof that it was out of your control (like layoff ) and ur intention to join the company after getting GC.

ramaonline
09-30-2007, 02:55 PM
q?> what we need to do after 180 days? if we changes employer?
I mean any forms to fill and whom/what/where to notify?

It is mandatory to inform USCIS about the change of employers. According to an article on murthy.com, USCIS had denied the 485 in a case where AC21 was invoked, and USCIS was not informed abt the employer change.

gc_chahiye
09-30-2007, 04:40 PM
1. Get a termination letter from you current employer showing the termination date. This letter can be used to prove your intent to join the GC employer, if at all USCIS issues an RFE on your I-485.

....

The most important thing to do right now is to be in legal status by transferring your H-1 on November 1, 2007.

.....

If USCIS issues you an RFE on I-485 in the future, asking you for reason for change of jobs < 180 days, then you can respond by attaching the current company's termination letter. This goes to prove that you had the intent to join the GC sponsoring company but business went sour and they had to let you go.


1. how is getting a termination letter going to save him? If anything it makes things worse (it is written proof that no job exists 180 days past the filing of the 485, hence the I-140/485 is potentially invalid anyway).

2. if what you are suggesting saves his 485, why do you think he needs to transfer his H1? He will remain in 485-pending state and work on EAD

3. its not just intent by you to join the company, its also intent by the COMPANY to hire you that drives the GC process. If there is no intent to hire by them, then does'nt the GC process collapse?

gc@waiting
09-30-2007, 05:34 PM
Anyone any idea if the 140 and 485 both are pending for 180 days and EAD is received and there are still 6 months left in the H1B (8th year extension) and is laid off with 140 still pending but 485 is in process for more than 180 days?

I really appreciate someone sharing the experience or expertise/thought on this.

desixp
09-30-2007, 07:18 PM
Hi all,

Thanks all for the information. This will help me in deciding which route is good. If I can get the final paycheck right after the 180 days of 485 and after that if I invoke AC21 will that help me?

Thanks,

DesiXP.

mammoy2k
09-30-2007, 09:27 PM
As per Yates memo if your I140 is pending for 180 days [concurrent filing] when USCIS decides to adjudicate the case, you should be fine as long as there is nothing warranting rejection [such as ability to pay at the time you applied I-140].


Anyone any idea if the 140 and 485 both are pending for 180 days and EAD is received and there are still 6 months left in the H1B (8th year extension) and is laid off with 140 still pending but 485 is in process for more than 180 days?

I really appreciate someone sharing the experience or expertise/thought on this.

loudoggs
09-30-2007, 10:16 PM
I have a chat log from Carl Shusterman that has some excellent FAQs....It has some of the questions that are raised here.....I am unable to upload the file....keep getting a upload error....can someone tell me how I can successfully upload the file....

The Shusterman document should answer your ques 1 & 2.

Also, I had a 1 hour paid session with Greg Siskind and I had asked him the same question. He told me that the main requirement is that if the termination happens in less than 180 days, then the GC sponsoring company should not revoke the 140. I would imagine if the company is laying off the employee, they would not revoke the 140 there by not touching the GC process.

Please see my answer to ques 3 below...

You guys have some good arguments. It sure is a grey area and that is why it is very important to consult a good lawyer.

The problem is, if the guy is getting laid off within 180 days, the 1st thing to do is to try and find a new employment in "same or similar" field and transfer H-1B. This is my opinion.

1. how is getting a termination letter going to save him? If anything it makes things worse (it is written proof that no job exists 180 days past the filing of the 485, hence the I-140/485 is potentially invalid anyway).

2. if what you are suggesting saves his 485, why do you think he needs to transfer his H1? He will remain in 485-pending state and work on EAD

3. its not just intent by you to join the company, its also intent by the COMPANY to hire you that drives the GC process. If there is no intent to hire by them, then does'nt the GC process collapse?
You are right. However, the requirement is that the company and the employee need to have the intention to work for each other at the time when the immigration petition was filed i.e. 140 was filed.