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AC21 Portability after 180 days of 485 filing AC21 Portability after 180 days of 485 filing. Changing employers without affecting green card process.

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  #1 (permalink)  
Old 02-03-2008, 08:02 PM
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Default 180 Days Passed - Can I be Unemployed?

Hello IV gurus, this question may have been asked before so apologies.

I am now past the 180 day filing period for 485. Also, 140 has been approved too. Now assuming I get laid off in the next few weeks - can I take some time off (meaning can I be unemployed)? I dont intend to travel outside the US and I also have EAD and AP in my hand.

- Can I be unemployed for the next few weeks/months without impacting the processing of the case? Of-course, I intend to be employed when the actual 485 gets approved...which given the current VB dates will take a few years.

- Can I continue to keep applying for EAD and AP even if I am unemployed? Meaning, can I pay for it on my own without my prior employer coming in the picture?

Thank you.
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  #2 (permalink)  
Old 02-03-2008, 10:16 PM
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Default Yes

Quote:
Originally Posted by fionaapple20 View Post
Hello IV gurus, this question may have been asked before so apologies.

I am now past the 180 day filing period for 485. Also, 140 has been approved too. Now assuming I get laid off in the next few weeks - can I take some time off (meaning can I be unemployed)? I dont intend to travel outside the US and I also have EAD and AP in my hand.

- Can I be unemployed for the next few weeks/months without impacting the processing of the case? Of-course, I intend to be employed when the actual 485 gets approved...which given the current VB dates will take a few years.

- Can I continue to keep applying for EAD and AP even if I am unemployed? Meaning, can I pay for it on my own without my prior employer coming in the picture?

Thank you.
Yes to all your questions.
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  #3 (permalink)  
Old 02-03-2008, 11:36 PM
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Originally Posted by sumavenkatappa View Post
Yes to all? Wow...EAD is definitely very handy especially in this recession time.
So what this indirectly means is that having a 140 approval + 485 filing (180 days +) and EAD/AP in hand = a virtual greencard (with paperwork inconveniences)? Unless the 485 gets denied for some reason (which is unlikely, unless there is fraud or some extenuating reason), this status is a virtual greencard...

What this also means is that there is no requirement to be 'continuously employed' - which is something that is required when a person in on H1. Gaps in employment do not pose any issues now...?
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Old 02-04-2008, 08:23 AM
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Default This is true but...

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Originally Posted by fionaapple20 View Post
So what this indirectly means is that having a 140 approval + 485 filing (180 days +) and EAD/AP in hand = a virtual greencard (with paperwork inconveniences)? Unless the 485 gets denied for some reason (which is unlikely, unless there is fraud or some extenuating reason), this status is a virtual greencard...

What this also means is that there is no requirement to be 'continuously employed' - which is something that is required when a person in on H1. Gaps in employment do not pose any issues now...?
This is true but do remember the following:

1.your "approved" I-140 can be revoked any time.
2.Your I-485 can be denied for any reason.

so it's must that if you leave current job, do maintain good relationship with GC sponsor employer, you still need their support to have a smooth sail.
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  #5 (permalink)  
Old 02-04-2008, 10:09 AM
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Default Question on revoking I 140

Does any one know the procedure for revoking I 140. Does the employer have to pay any fees to USCIS? I heard lots of companies never cancel H1B because they have to pay certain fees is it similar for 140 too?
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  #6 (permalink)  
Old 02-04-2008, 11:41 AM
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Default

Quote:
Originally Posted by fionaapple20 View Post
So what this indirectly means is that having a 140 approval + 485 filing (180 days +) and EAD/AP in hand = a virtual greencard (with paperwork inconveniences)? Unless the 485 gets denied for some reason (which is unlikely, unless there is fraud or some extenuating reason), this status is a virtual greencard...

What this also means is that there is no requirement to be 'continuously employed' - which is something that is required when a person in on H1. Gaps in employment do not pose any issues now...?
EAD+AP+AOS = virtual greencard -- well, sort of... maybe. you are NEVER completely free of your employer until you get your actual GC.

bypassing continuous employment -- be very careful here. although it's not a requirement, a cranky IO can use gaps in employment (with 140 or AC21 employer) to question "intent" and deny your 485. But if it makes you feel any better, read unitednation's experience with employment gaps and interview with IO:
http://immigrationvoice.org/forum/sh...&postcount=212

oh and if you ask me - yeah i would do it too. but i would feel more comfortable after invoking AC21. it's my understanding/interpretation that employment gaps with original 140 employer can lead to more red flags than it does with a new AC21 employer.

p.s.: unitednations did get his 485 approved.
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  #7 (permalink)  
Old 02-04-2008, 02:32 PM
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Default More Questions...

Thank you - Munna Bhai and Manderson for your comments.

- If a person is laid off after 140 approval + 485 pending for 180+ days, will there be any RFE or any other issues when he/she applies for EAD renewal on own?

- If a person is laid off after 140 approval + 485 pending for 180+ days, will there be an issues if travel is required outside the US and return back to US is by using AP? I mean to say, person is unemployed (140 approval + 485 pending for 180+ days, has valid EAD/AP in hand) and needs to travel outside the US.
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  #8 (permalink)  
Old 02-04-2008, 02:55 PM
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Quote:
Originally Posted by fionaapple20 View Post
Thank you - Munna Bhai and Manderson for your comments.

- If a person is laid off after 140 approval + 485 pending for 180+ days, will there be any RFE or any other issues when he/she applies for EAD renewal on own?

- If a person is laid off after 140 approval + 485 pending for 180+ days, will there be an issues if travel is required outside the US and return back to US is by using AP? I mean to say, person is unemployed (140 approval + 485 pending for 180+ days, has valid EAD/AP in hand) and needs to travel outside the US.
In that case you have to switch to a new employer via AC21 before your 485 is approved (to avoid questions from the IO) - so ASAP once you are laid off. I assume it's safer to have a new AC21 employer before you renew EAD/ travel (but I am not sure if this is a strict requirement).
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Old 02-04-2008, 04:28 PM
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Quote:
Originally Posted by Munna Bhai View Post
This is true but do remember the following:

1.your "approved" I-140 can be revoked any time.
2.Your I-485 can be denied for any reason.

so it's must that if you leave current job, do maintain good relationship with GC sponsor employer, you still need their support to have a smooth sail.
Hi MunnaBhai,
I thought revocation of approved I-140 after 180+ days of 485 will not affect the 485 application (provided the ported job is same/similar). Is that right?

Of course I understood your and pappu's basic point that EAD+AP+485 that is pending 180 days+AC21 does not really equal greencard because there are still many things that can go wrong. But on paper, the revocation of I140 itself should not affect - let me know if I am wrong in my understanding.

Staying at the sponsored company till GC approval may be best (from GC point of view) - but if we have to change, AC21 is a good thing. But I heard some stories which makes me nervous - one such story is someone's 485 was rejected without NOID (notice of intention to deny) and he came to know only when EAD renewal was rejected. The reason given was that underlying I140 was revoked - even though his 485 was pending 180+ days. I read this story somewhere, not sure what happened. Maybe an appeal might have corrected it but its still pain. AC21 can never really replace the peace of mind of having real GC. Also the provision of working in same/similar job and its interpretation is vague and may not workout well for many.

Hope the drive by IV for admintrative reforms to avoid issues like as above will succeed and we can rest a bit more peacefully.
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  #10 (permalink)  
Old 02-06-2008, 11:52 AM
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I am now past the 180 day filing period for 485. Also, 140 has been approved. But my employer hasnt applied for my EAD / AP as I have a valid H1B.

If I get laid off but employer promises no I-140 revocation -

Can I then apply for EAD / AP on my own and look for a job thereby not have to leave the country for good?

Is it ok to have a gap between H1B expiry date (say July 31, 2008) and start of EAD (Oct 1, 2008) when a person is in AOS?
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  #11 (permalink)  
Old 02-06-2008, 12:33 PM
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Quote:
Originally Posted by Munna Bhai View Post
This is true but do remember the following:

1.your "approved" I-140 can be revoked any time.
2.Your I-485 can be denied for any reason.

so it's must that if you leave current job, do maintain good relationship with GC sponsor employer, you still need their support to have a smooth sail.

____________________________________
__________________________________
Hi MunnaBhai,
I thought revocation of approved I-140 after 180+ days of 485 will not affect the 485 application.
My Question is - What happens if after a layoff from the sponsoring employer after 180 days someone is still looking for a new job and his 140 is revoked by the sponsoring employer?
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  #12 (permalink)  
Old 02-06-2008, 12:53 PM
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1. Is it true the USCIS must issue a NOID before denying a I-485 case?

2. What is the impact on pending GC of revoking an approved I-140 after 180 days of I-485 pending?
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Old 02-06-2008, 01:06 PM
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Originally Posted by desidas View Post
1. Is it true the USCIS must issue a NOID before denying a I-485 case?

2. What is the impact on pending GC of revoking an approved I-140 after 180 days of I-485 pending?
1. Yes
2. RFE and NOID (there is a slight chance to avoid it if you send AC21 papers right after job change).
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  #14 (permalink)  
Old 02-06-2008, 01:14 PM
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1st Question - Yes you can apply for EAD and AP on your own. But I would recommend that you apply for them now and have them ready instead of waiting till you get laid off. Those things take close to 3 months to get approved so better be ready. Most of us applied for those with AOS and have them with us even if we don't use them.

2ns Question - I am not sure.

Quote:
Originally Posted by gchopes View Post
I am now past the 180 day filing period for 485. Also, 140 has been approved. But my employer hasnt applied for my EAD / AP as I have a valid H1B.

If I get laid off but employer promises no I-140 revocation -

Can I then apply for EAD / AP on my own and look for a job thereby not have to leave the country for good?

Is it ok to have a gap between H1B expiry date (say July 31, 2008) and start of EAD (Oct 1, 2008) when a person is in AOS?
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Old 02-06-2008, 03:43 PM
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Quote:
Originally Posted by gchopes View Post
Is it ok to have a gap between H1B expiry date (say July 31, 2008) and start of EAD (Oct 1, 2008) when a person is in AOS?
I would think it would be okay since AOS is a status (not EAD) which you maintain. EAD just allows you to work for anyone (but not maintain status. For status you use AOS/485)
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