GINNU: quitting after green card

[airberd]

I just got a green card and am thinking of quitting my job.
I spoke to 2 lawyers, both said that since I had already used AC-21 to switch from Company A to Compnay B, I dont have to stay in Company B.

But from reading other posts in this forum, it left me a little confused If I could do this.

any suggestions/advice on switching jobs after AC-21?

It seems to me that logically what the lawyers are saying is correct. Company B never did anything for my case apart from giving me a letter. It would not make sense to be tied to them for 6 months at this time.

[Jackolantern]

Originally Posted by airberd

It seems to me that logically what the lawyers are saying is correct. Company B never did anything for my case apart from giving me a letter. It would not make sense to be tied to them for 6 months at this time.

USCIS does not operate based on what makes sense.

Do you plan to apply for citizenship? And do you plan to apply when you hit the 5 year mark or soon after? If yes, ask yourself what situation you want to be in when facing the officer for the interview, if they ask stern questions about your employment history. Whatever you do now, you should be comfortable with the effect you expect it to have on your citizenship process and interview, otherwise don't do it. Picture yourself at the interview and think about whether changing jobs now would make you nervous at interview time, hoping and praying that they don't ask about your jobs.

[TheRealCanadian]

Originally Posted by airberd

It seems to me that logically what the lawyers are saying is correct. Company B never did anything for my case apart from giving me a letter. It would not make sense to be tied to them for 6 months at this time.

Why does it make sense? Your staying with B isn't based on what they did for you; it is based on what you told USCIS - namely, that you intended to work for B on a permanent or at least indefinite basis.

[StillAlive]

TheRealCanadian and Jackolantern thank for your service here.

Here is my situation.

• On 24th received email from USICS "Notice mailed welcoming the new permanent resident", have not received card or notice yet.

• My current contract with client ends on first week of September 07

• Currently working on a consulting company A.inc on H1-B, even though I have 3rd EAD

• My green card is processed from A.LLC, which is part of A.INC ( don't know it is a subsidiary or how they setup the company)

• My first labor applied from A.INC which was in BEC, recently it has been withdrawn without my notice (now it doesn't matter either)

• All my payroll is from A.inc for last 4 and half year, I never paid under A.LLC which is suppose to be my GC sponsoring company

Now to my questions (before this I read some of thread here about real intent question).
1. What is the date considered for counting working period after getting GC, is it depend on the date mentioned in the physical card or something else?
2. Can I give 2 weeks notice to find a job for me and if they are not able to find job, then I find myself another company and move on?
3. Based on my setup I never worked on my GC sponsoring company, is it going to be an issue?
4. When should I notify my company that I got the green card?
5. Once company know about my GC, when should they legally put me in the payroll A.LLC?
6. How should I legally make them to take some action, either put me in A.LLC payroll and pay me on bench or give me a termination letter, so that this will become basis that I had an intent to work.
7. If I need to get a termination letter, should it come from A.INC or A.LLC (they never hired me from this company)?
8. How soon I can open my own company and be in the payroll of self employed company.

Either I am stupid to ask these question or I am over thinking about this process.

I sincerely thanking your advice on my situation.

[ginnu]

Originally Posted by airberd

I just got a green card and am thinking of quitting my job.
I spoke to 2 lawyers, both said that since I had already used AC-21 to switch from Company A to Compnay B, I dont have to stay in Company B.

But from reading other posts in this forum, it left me a little confused If I could do this.

any suggestions/advice on switching jobs after AC-21?

It seems to me that logically what the lawyers are saying is correct. Company B never did anything for my case apart from giving me a letter. It would not make sense to be tied to them for 6 months at this time.

------------------who filed LC, I-140 for you A or B?
at the time of filing I-485 job offer letter was attached from A or B?
date I-140 got approved
date I-485 got approved
are you with A or with B at this time
when did you changed employer?
did you file AC21 request ? did you sent A or B job offer letter when you sent AC21. it seems to me that B gave you letter to invoke AC21 and at present you are with B. Please clear the situation with dates

[airberd]

RealCanadian,
what you say is of course correct, but i believe the restriction on changing jobs only applies to the 'sponsoring' employer. I could be wrong, but thats what I remember reading in one of the many msgs which had cut and pasted some stuff from uscis site about citizenship questions. Plus AC-21 does not stipulate that I will continue working for Company B fater green card. It only stipulates that the same conditions for employment exist as were mentioned in the original petition and that company B would like USCIS to continue the processing based on that. I think the whole point of AC-21 was to allow portability after the employee has fulfilled requirements for obtaining an employment based green card and would like to pursue other opportunities because of delays caused by USCIS in processing the case. I could be wrong of course. this is USCIS.

Jackolantern, my reasoning for switching or not switching jobs has to be based on published rules and regulations, not on fear. <Edited out by Airberd>

the question was -- does AC-21 use make this requirement of 6 months or so null and void, in the case the petitioner worked for a number of years for the sponsoring employer, used AC-21 to switch to Employer B, and and now wants to quit after a year of working for B? Any regulations from USCIS regarding job changes would be welcome. I do not mind going thru thick reports to dig for the answer.

Sorry for the long post. thanks for going thru this.

[Jackolantern]

Find out the Federal Tax ID of A.Inc and A.LLC. If they are the same, they are considered to be the same employer for USCIS purposes.

[airberd]

Ginnu,
A filed LC and I-140
At time of I-485, Job offer letter was also from A
I worked in A for 18 months after filing 485 and approval of I-140

All the Dates:
Started with Company A in Jan 2004
Labor filed: Mar 2004
I140 and I485 filed Jan 2005
I 140 approved May 2005
Used AC-21 on Aug 2006. I filed AC-21 with USCIS. Used offer letter from B.
I-485 approved Aug 2007
I am presently still with Company B. and would like to switch asap.

thanks for your help.

[StillAlive]

Is there any way other than finding through employer. Could you also answer my questions. (sorry airberd, if I hijack your thread)

Originally Posted by Jackolantern

Find out the Federal Tax ID of A.Inc and A.LLC. If they are the same, they are considered to be the same employer for USCIS purposes.

[Jackolantern]

Originally Posted by airberd

Jackolantern, my reasoning for switching or not switching jobs has to be based on published rules and regulations, not on fear. I cannot operate on fear. I have seen this line of reasoning in your earlier responses in the 485 forums. I am sorry to be so critical but I believe that you did not answer the question, did not contribute anything of value, and only added an element of real or perceived fear into the equation. Maybe thats how you like to operate and theres nothing wrong in that, but then dont impose your fears and worries of 'what ifs' on others.

Anybody who claims to give you a conclusive YES or NO is lying, because there is no specific law or court ruling either way about how soon you can leave the job after obtaining the GC. It will remain a grey area until a court or another law or at least a USCIS memo sets some clear guidelines. The only rule is that the longer you stay, the safer it is.

I am not trying to impose any fear on anybody. I am saying that if you have that fear, you probably should not do it.

[airberd]

Your current employers fed ID should be on your paystub or W2.

For the other entity, You may be able to get the fed ID from the state where the company is registered, but I would not bet on it.

A.LLC could be a wholly owned subsidiary of A.inc. This question can be easily answered by your present company. After all this is a valid concern, which can be asked from present employer.

[ginnu]

Here is info from our host Rajiv Khanna:


Rajiv's opinion on 'changing job' after GC

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Please see Rajiv's opinion about 'changing job' after GC. This is also part of Immigration.com FAQ. Let us not discuss on this anymore.


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Q. How soon can I leave my petitioning employer once I get my green card approval?

A. There is no brief answer to this question. Let me explain. The basic premise (or theory) behind permanent residence through offer of employment is that an employee is accepting a job on a "permanent" bases. What does "permanent" mean? Does it mean for ever. Obviously not. That would be unreasonable. But "permanent" also does not mean that you pack your bags the moment you receive your green card. So what is the answer? No one really knows. Each case has to be determined upon its own merits. Normally, I would say working for one year or more with the same employer after getting your GC is PROBABLY enough indication of permanency. Less than 4-5 months is perhaps evidence to the contrary

But REMEMBER, this is just my own guess. Technically speaking, the moment you decide that you will leave after a certain period of time, "permanent" intent is gone. Catch-22 eh? Well that is the way it is.

There may be considerable relaxation in this interpretation because in the year 2001 Congress enacted a law that permits employees to leave an employer even while their I-485 is pending. We do not have the regulations or any detailed guidance on these issues.


FREQUENTLY ASKED QUESTIONS
----------------------------------------------
Q. I did not willingly left the GC sponsor employer but actually after three months I got my GC, i got laid off from the project and due to the bad economy , my employer was not able to get me other project so he gave me letter saying that he wont be able to pay me salary since he doesnt have any project for me.And, after getting that letter I resigned from GC sponsor employer.
This is the whole scenario, now considering it, Am I still at risk?

A. There are no clear rules as we have stated above. But, In my opinion, there is no risk in this scenario. You acted in good faith to continue the job, but your employer could not continue to employ you.

Q. I am employed at the XYZ University (XYZU). I applied for 485 myself (without attorney). My 485 was approved last month and I got my passport stamped in July. My contract with XYZU is coming to an end. My job is renewed every year based on the availability of funding. I have been with XYZU for the last 5 years. There is a possibility that they (XYZU) may not extend the contract because the research grant I got is coming to an end in september.
Will my termination from the job at XYZU affect my Green Card in the future, and is it better to be terminated from service (based on unavailability of funding) by the WVU or is it better to offer my resignation?

A. I think it is better to be terminated. There are no clear rules as we have stated above. But, In my opinion, there is no risk in this scenario. You acted in good faith to continue the job, but your employer could not continue to employ you.


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[airberd]

Jack, apologies for the earlier post.

If there is no rule, and throwing in AC-21, and also the long delays of USCIS processing, do you think there are enough loop holes here to successfully challenge this in a court of law in case of any issues later on?

I have a good opportunity and I do not want to pass it up. With the market being what it is, I do not want to put my career on hold if there is no need to do so.

[ginnu]

Here is info from other good lawyer:

Updated 11/29/99: Question of Obligation of 485-Approved-Alien to Work for the Employer

As more people will get 485 approvals, people question what their obligations are under the law.
Without doubt, Green Card does not mean one will become a permanent slave to the employer. Then what is their obligation?
There is no hard and fast rule on the question. It is basically the issue of "intent" of the employer and alien employee. For instance, if the employer sponsored green card with no intention to keep him/her indefinitely, employer was commiting "fraud." The same is true if the alien employee applies for green card with no intention to work for the employer indefinitely. It all boils down to question of "real intent" which is a "state of mind" that can be established by either a direct evidence or circumstantial evidence.
If one starts going into the open market to look for a permanent job with another employer and intends to move to the second employer as soon as the green card is granted through the current employer, it should be a classific example of fraud. Should the INS obtain such evidence, the INS may start cancellation proceeding. Additionally, if one quits the job as soon as one gets the green card approval, it will be construed as reflection of the state of mind of the alien that he/she did not have any intention to work for the employer. There are two relevant analogies on the required period of employment. DOL defines permanent employment as the one that lasts for a year or longer. On the other hand, in the nonimmigrant context, both the INS and the DOS adopt so-called the rule of presumption of misrepresentation in case an alien enters the U.S. on a certain type of visa and within 60 days attempts to change the status to other nonimmigrant visa or immigrant status. However, when it comes to presumption of certain state of mind, no court will accept one year period of time as the basis of determining one's state of mind. It is a close call, but unless there is a clear and direct evidence that the alien had such state of mind, it should be much less period than one year and definitely more than two or three months.
If an alien loses the job as soon as he/she gets the green card because of the factors which are beyond their control, the alien will be in good shape. For instance, if the alien is terminated by the employer within one week for whatever reasons, he/she will be in good shape. If the company shuts down in a few days, the alien will be in good shape, even though there is a question of employer having committed a misrepresentation as to the issue of continuing existence of permanent job at the time of INS approving the green card.
Please do not assume that even if one commits such a wrongdoing, one will permanently escape the net. In various occasions in the future, including naturalization application or immigrant petition for family members, it may haunt and throw another opportunity for the INS to review his/her immigration history. Wise persons will not form a "preconceived intent" to use the employer for the sole purpose of obtaining green card and immediately abandone that employer as soon as his/her scheme is achieved. Please remember that inasmuch as such state of mind was not formed at the time of obtaining the green card, but certain circumstanstances have developed afterwards, one is in good shape. Time of intent and time of act will be critically important when such legal tangle develops

[ginnu]

here is other info related to INTENT posted in past by a lawyer one should read according to his her situation

Issues of Intent:
How Does USCIS Determine
What’s In Your Head?


In order to obtain certain immigration benefits, applicants must

demonstrate to USCIS that they have certain intentions. A person’s

intentions are internal and can only be ascertained through analysis of

the person’s actions. There three major contexts in which USCIS requires a

person to have a certain intent: (1) in order to gain admission to the

United States in any nonimmigrant status besides H or L, the applicant

must have nonimmigrant intent; (2) in order to be granted permanent

resident status based on employment, the alien must intend to continue

working indefinitely for the employer that filed his I-140 petition; and

(3) in order to be naturalized, an alien must show that he intended to

maintain his residence in the United States.

Nonimmigrant Intent

In 1976, a landmark court case called Seihoon v. Levy clearly set the

boundaries of the INS in determining the intent of individuals. Because

the INS won the case, INS officers cite it constantly to demonstrate how

intent can be determined. If the INS had lost the case, INS officers would

say that the decision was limited to the person who brought the case. In

any case, Seihoon v. Levy was brought before a U.S. District Court on

appeal by an alien who contended that the INS had improperly denied his

application for a change of status from Visitor status to Student status.

The INS had originally denied his petition because while he entered the

U.S. as a visitor, he immediately enrolled in a U.S. university and sought

to change his status to student status. INS decided that because the alien

had decided so rapidly to change from Visitor to Student status, he had

misrepresented his intention to enter the U.S. as a visitor only. INS

determined that his true intent, when entering as a “visitor,” was to

enroll in a U.S. school.

The District Court decided that the INS had acted correctly when it denied

the alien’s application for change of status to Student status. The

Court’s reasoning was that the “rapid course of events” following the

alien’s entry to the U.S. on Visitor status was evidence of his intent

upon entry. While the Court recognized that it is impossible for the INS

to read people’s minds in order to determine their intentions, it is

certainly possible for the INS to observe the behavior that people exhibit

after they express an intention. They can then compare people’s behavior

to their expressed intentions, to see if it corresponds. If the “rapid

course of events” following a person’s statement of intent seems to

indicate that the person intended something other than what he or she

expressed to the INS, then the consequences can be serious.

In the case of Seihoon v. Levy, the alien’s change of status was denied

and he was not able to enroll in university classes in the U.S. at that

time. The concept of nonimmigrant intent is applied to all nonimmigrant

statuses except for H and L, which are exempt by law from this

requirement. For example, if a B-2 visitor enters the U.S. and files a

permanent residency application a few weeks later, USCIS is likely to find

that the alien misrepresented his intent upon entry to the United States

to enter only as a “visitor.”

The concept of “intent” is borrowed from Seihoon v. Levy and applied to

many other immigration contexts in which the alien is required to have a

certain intent.

Intent to Work for the I-140 or I-360 Petitioner

Employment-based nonimmigrant visa holders can obtain permanent residence

(PR) either by Consular Processing or by Adjustment of Status. If Consular

Processing is chosen, the alien must present a letter of employment at the

time of the Consulate interview abroad, stating that upon receiving of PR

status, he or she intends to work indefinitely for the petitioning

employer on the underlying I-140 petition. This statement is required

based on the underlying assumption that the alien is entering the U.S.

primarily to work in an occupation for which there is a shortage of U.S.

workers. Unfortunately intent is a difficult thing to document or to

prove.

For beneficiaries of I-360 Religious Worker Petitions, there is an

additional intent requirement. Not only must the beneficiary intend, at

the time of the consulate interview or adjustment of status to work for

the I-360 petitioner after he is granted permanent residence; he must also

be entering the U.S. "solely" to carry on religious work in the

denomination that sponsored the I-360. This means that he must intend to

work full time for the I-360 petitioner and that he must not intend to

engage in additional, supplemental employment apart from his religious

work.

If USCIS believes that a permanent resident received a green card

following a Consular Processing interview at which he or she

misrepresented his/her intention to continue working for the petitioning

employer, or to work "solely" as a religious worker in the I-360 context,

then he or she may be guilty of making a material misrepresentation

(fraud) and may never be able to become a naturalized citizen based on

that green card. In addition, USCIS routinely deports individuals who make

such misrepresentations.

There are two ways in which the alien’s intent at the time of the

Consulate interview may come into question. The first would be if someone

reported the alien’s misrepresentation to the USCIS. The tip-off could

come from an aggrieved employer who supported the alien’s immigration

process in anticipation of a continued employment; or it could come from a

fellow employee who is aware of the situation. It could also come from an

angry ex-boyfriend or girlfriend. Anyone can call USCIS to report that

someone has broken immigration laws. Upon receiving a tip-off, USCIS would

have to launch an investigation. The other way in which the alien’s

misrepresentation might be discovered would be at the time of his or her

Naturalization interview. The USCIS officer conducting the interview would

query the alien on his or her actions following receipt of permanent

status. If at that time it came out that the alien changed employers of

his/her own accord immediately following receipt of permanent resident

status, he or she could be deemed ineligible for naturalization.

In order to determine whether the alien truthfully represented his or her

intent to remain with his or her petitioning U.S. employer after receiving

the green card, the USCIS uses the standard created by Seihoon v. Levy.

That is, USCIS examines the “rapid course of events” following the alien’s

receipt of his or her green card. The Department of State has reduced this

rule to a 30-60-90 day formula which USCIS generally follows. If an alien

ends employment with the petitioning employer within 30 days of receiving

his/her green card, then it is highly likely that USCIS will decide that

the alien’s intent at the Consulate interview was not, as he/she stated,

to remain with the petitioning employer indefinitely. After 60 days have

passed, it is less likely (but still risky) that USCIS will determine that

the alien lied about his/her intent at the Consulate interview. And after

90 days, it is highly unlikely that USCIS will have a problem with the

alien’s change of employment.

Maintaining Residence for Naturalization Purposes

An applicant for naturalization must prove that he has maintained his

residence in the United States for a certain statutory period, usually

five years prior to the filing of his naturalization application. A

person’s residence is where his heart is; and a person is not always

physically present at his residence. Therefore a permanent resident may

travel abroad, even frequently, and still maintain his residence in the

United States. The concept of residence is than a question of where the

person intends his home to be.

In determining whether an alien has maintained his residence in the U.S.,

USCIS looks at the following factors:

* amount of time spent in the U.S.
* the reasons for departures from the U.S.
* whether the termination date for the visit(s) abroad were fixed by some

early event or whether they could have continued indefinitely
* whether during the alien’s trip(s) abroad, his place of employment

and/or actual home remained in the U.S.
* whether his family remained in the U.S.

USCIS must also analyze the alien’s primary purpose in departing the U.S.

to determine whether the alien’s intent in leaving was to abandon his

permanent resident status.

(Note: Naturalization is not the only context in which the issue of

“abandonment of residence” arises. A permanent resident who has been out

of the U.S. for over six months, especially if he has not obtained a

Re-entry Permit, may be placed in removal proceedings by a Customs Officer

upon applying for admission at a U.S. port of entry).

The intent requirement for maintenance of residence is not heavily

dependent on the concept of a “rapid sequence of events” described in

Seihoon v. Levy. Rather, the USCIS officer interviewing the naturalization

applicant must look at the whole picture presented by the applicant,

including the reasons for his departures and the extent of his ties to the

United States.

[airberd]

Ginnu, thanks for the detailed responses.

<Quote>
There may be considerable relaxation in this interpretation because in the year 2001 Congress enacted a law that permits employees to leave an employer even while their I-485 is pending. We do not have the regulations or any detailed guidance on these issues. </Quote>


But these postings do not address the AC-21 scenario. I guess Jack is right. There is no Yes or NO answer to this. essentially boils down to risk down the line.

[ginnu]

Originally Posted by airberd

Ginnu, thanks for the detailed responses.

<Quote>
There may be considerable relaxation in this interpretation because in the year 2001 Congress enacted a law that permits employees to leave an employer even while their I-485 is pending. We do not have the regulations or any detailed guidance on these issues. </Quote>


But these postings do not address the AC-21 scenario. I guess Jack is right. There is no Yes or NO answer to this. essentially boils down to risk down the line.

who filed LC, I-140 for you A or B?
at the time of filing I-485 job offer letter was attached from A or B?
date I-140 got approved
date I-485 got approved
are you with A or with B at this time
when did you changed employer?
did you file AC21 request ? did you sent A or B job offer letter when you sent AC21. it seems to me that B gave you letter to invoke AC21 and at present you are with B. Please clear the situation with dates

[StillAlive]

I got one clue, my last H1-B was approved for 3 year based on I-140 approval (obviously I-140 belongs to A.LLC in my case), so if it is a subsidiary, is it ok to leave now provided my company not able to get me job in certain days (question is how long he can keep me on bench after getting GC?)

Originally Posted by airberd

Your current employers fed ID should be on your paystub or W2.

For the other entity, You may be able to get the fed ID from the state where the company is registered, but I would not bet on it.

A.LLC could be a wholly owned subsidiary of A.inc. This question can be easily answered by your present company. After all this is a valid concern, which can be asked from present employer.

[Jackolantern]

There is no Yes or NO answer to this. essentially boils down to risk down the line.

Exactly. Be aware that you are venturing into unknown territory, and decide for yourself if you want to take the risk.

While there is no hard and fast answer to your question, there are a few statements about the risk that most people will agree on:

• The longer you stay with the employer, the lower the risk.
• It is extremely unlikely that they will proactively go and seek out individuals who changed their jobs quickly, unless the employer complains. So for most people the element of risk only occurs at the time of applying for citizenship.
• The longer you wait to apply for citizenship, the less concerned the USCIS will be about what happened around the time of getting your green card (after all, they only ask for 5 years of employment history on the citizenship application), and thus the lower the risk.

There are a few threads on the citizenship forum where the posters reported getting hassled about leaving the employer too soon, but they ultimately got their citizenship approved. Still, it is not pleasant to have to dig yourself out of a hole to get your case approved.

It is only in the past year or so that the first batch of people who could have changed jobs under AC21 have become eligible for citizenship. It will take some more time before this aspect of the law is challenged and clarified.

[airberd]

Ginnu,
I posted this earlier. I think you missed it.

Reposting:


Ginnu,
A filed LC and I-140
At time of I-485, Job offer letter was also from A
I worked in A for 18 months after filing 485 and approval of I-140

All the Dates:
Started with Company A in Jan 2004
Labor filed: Mar 2004
I140 and I485 filed Jan 2005
I 140 approved May 2005
Used AC-21 on Aug 2006. I filed AC-21 with USCIS. Used offer letter from B.
I-485 approved Aug 2007
I am presently still with Company B. and would like to switch asap.

thanks for your help.

[TheRealCanadian]

Originally Posted by airberd

i believe the restriction on changing jobs only applies to the 'sponsoring' employer. I could be wrong, but thats what I remember reading in one of the many msgs which had cut and pasted some stuff from uscis site about citizenship questions. Plus AC-21 does not stipulate that I will continue working for Company B fater green card.

What AC21 allows the alien to do is port the Green Card process to a different employer or a similar job, but that's about it. The underlying expectation is that the job is permanent, the alien intends to work there indefinitely and everything else in the GC petition remains the same.

It's why you cannot use AC21 to port to a job with an explicit end date, or less than a full-time job.

[ginnu]

Originally Posted by airberd

Ginnu,
I posted this earlier. I think you missed it.

Reposting:


Ginnu,
A filed LC and I-140
At time of I-485, Job offer letter was also from A
I worked in A for 18 months after filing 485 and approval of I-140

All the Dates:
Started with Company A in Jan 2004
Labor filed: Mar 2004
I140 and I485 filed Jan 2005
I 140 approved May 2005
Used AC-21 on Aug 2006. I filed AC-21 with USCIS. Used offer letter from B.
I-485 approved Aug 2007
I am presently still with Company B. and would like to switch asap.

thanks for your help.

it means your I-485 was approved on the base of job offer letter of B and you should work with B for some time. you got I-485 approved on August 16 and dont leave B at this time ( if B is ready to fire you then it is ok).

[airberd]

Thanks Ginnu, as always you have been of tremendous help. and thanks, The RealCanadian and Jack for some valuable advice.

I am still talking to lawyers abt this to get an opinion on this. Will post results of that over here.

and Apologies to Jack abt comments yesterday. I think I misunderstood what he was saying.

and now on to work!!!! :-(