got layed-off 3 weeks before 485 was approved.

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obajaj

Registered Users (C)
Got layed-off 3 weeks before I485 was approved.

Hi folks,

I just sent in my N400 Citizenship application a few days ago and am a little concerned about the AC21 rules and interpretations.

I got layed-off just about 3 weeks before my I485 was approved.
Here is an exact timeline:

May 9, 2001: I485 Receive date by the INS.
December 31, 2001: Got layed-off.
January 23, 2002: I485 approved.
March 13, 2002: New employer made me an offer.
April 22, 2002: Started working for my new employer.

Here are the basic facts:
1) I485 was pending for > 180 days.
2) I140 was not withdrawn by original employer at any ttime.
3) Was in "layed-off" state on the date my I485 was approved and for about 50 days after.

Now, according to Question 14 of Section I of the AC21 memo I have posted (I found it on the USCIS website), I quote:

Question 14. Must the alien have a new offer of employment at the time the I-485 is being adjudicated under the I-140 portability provisions?
Answer: Yes. The alien cannot still be looking for “same or similar” employment at the time the I-485 is being adjudicated under the adjustment portability provisions. The alien must be able to show there is a new valid offer of employment at the time the I-485 is adjudicated.
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1) How should I handle this situation at the Naturalization Interview incase it comes up?
2) Has anyone on this forum been asked any AC21 related questions? How did you handle it?
3) In reality I had 2 offers of employment around the date my I485 was approved, but I was waiting for a more interesting offer. At that time I wasn't aware that I needed to be working on the date my I485 was approved. In this situation should I:
a) Show that I had another offer (but didn't actually take it)?
b) Say that I took a vacation (in the U.S.) between my old and new employment dates? (I was in a mood of taking some time off anyway and this seemed like a perfect opportunity between jobs)
c) Say that I was sick and although I had the new offer in hand, couldn't start until 2 months later?

Any thoughts/ideas would REALLY be appreciated!
 
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The main thing during the citizenship interview is to be truthful.
The IO will be understanding if you say the truth, rather than try to twist it.
 
As a follow up question, in an extreme case, what happens if a person's I485 gets approved soon after (say 1 day) after he/she is layed-off?
It would be unreasonable to expect a person to have a new job the next day he/she is layed-off! (Although technically that would be called "looking for “same or similar” employment at the time the I-485 is being adjudicated".

When a person's I485 is approved in such situations, is it considered to be "legally" obtained IF THE INS DIDN'T SEND ANY RFE?

In other words is the fact that the INS didn't send an RFE and approved the I485 (AOS) sufficient evidence that the I485 was legal? (Assuming that the basis documents and supporting facts were all genuine)
 
Thanks for your reply CrossHairs.

I understand that one must be truthful during the interview. In this situation, there are "several" truths:

1) I was in a mood for taking a quick vacation between jobs.
2) I didn't know I was supposed to be working on "the day" my I485 is approved (especially since it was just 23 days after I was layed-off)
3) I DID have an offer of employment as of the date my I485 was approved. (But decided not to take that "other" offer)

1) In situations like this, WHICH truth should I bring to focus with the IO?
2) Does an IO have any discretionary power to "overlook" the fact that I was not working on the date my I485 was approved? (Just by my being truthful). In other words, isn't the IO supposed to go strictly by the book, or is that subject to individual discretion of the IO?

Thanks very much in advance for your replies!
 
I do think IO look at the circumstance (I'm not a lawyer, just another person like you figuring things too, so this standard disclaimer shud be there).

I dont have a quick answer for you, I suppose #2 + #3 sounds reasonable.
 
Obajaj,

After reading your case, I am very optimistic and confident that you will not have any issue with the approval of your N-400 petition. The reason of my confidence are the seven cases that I have tracked on this forum. These cases were very similar to yours and every single one of them has been approved (100% success).

It is true that each case is different and so is the Immigration Officer who interviews. The Immigration Offices are basically looking to see that your petition was not fraudulent and there was not any ulterior motive behind your case. Since you were laid off, it was your company that let you go, you were willing to stay with them for the future (GC) job, so you are all OK. In-fact, it is quite possible that the I/O will not even ask you a single employment related question during the N-400 interview (oh yes, it has happened many many times). The following two reasons will tremendously aid your interview experience:
  • If you have a termination letter from your company, it will be easier to prove that it was the company that let you go
  • If you joined the new job with the same title/job description

However, I can not give you 100% assurance or guarantee about the outcome of your case. There is very high probability of success in your case based on the past experience of forum members. Hope this helps and good luck.
 
Hi koolvik7,

Thanks for your encouraging input to the matter.
Do you happen to have links to the posts about the other 7 AC21 cases that you mentioned?
I was thinking of reading other similar cases to mine, just so that I am prepared.

Yes, I do have both, the terminating letter from my I140 petitioning (former) company, saying that I was layed-off, as well as the offer letter from the new company I worked for (dated about 50 days after my I485 was approved)

Thanks for your help!
 
obajaj,
I am on the similar, if not same, boat. I also got laid off after some 210 days of I-485 receipt date so I can see your concern. Well, I just applied for USC so I don' tknow what will happen to my case. However, my case is slightly different than yours. In my case, I joined my new company the Monday after the Friday, I was laid off. Kind of unusual huhh? Basically, I planned the whole thing such that there is no gap in employment while my I-485 was pending. Thanks to my previous employer who co-operated to the extent possible.

Regardless, I agree with others who have posted that as long as you have not obtained GC fraudulently, it should be probably be ok. I have also heard that many of these IOs don't know enough about the overly complex green card process. I doubt if they know about AC-21 clause. My take on this citizenshjip application is that, to the extent that you haven't committed a crime or a fradulent activity with respect to your immigration status, you should be fine. Of course, no one can assure you 100% as there is always a chance for things to get ugly but you should be ok as long as you bring all the supporting documentation and answer the quesitons, truthfully, you are asked. Remember, do NOT volunteer the information you are not asked. In other words, don't widen the scope of conversation if that's not the intent of the interviewer.

Please do post your experience back here. BTW, what's you PD? Mine is mid-April 2007.
 
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Disclaimer: I am just another N400 applicant

obajaj said:
Thanks for your reply CrossHairs.

I understand that one must be truthful during the interview. In this situation, there are "several" truths:

1) I was in a mood for taking a quick vacation between jobs.
2) I didn't know I was supposed to be working on "the day" my I485 is approved (especially since it was just 23 days after I was layed-off)
3) I DID have an offer of employment as of the date my I485 was approved. (But decided not to take that "other" offer)
Click to expand...

Obajaj,

All might be valid reasons from your point of view but USCIS does not care. #1 & #2 will not work for sure. I'm not sure about #3. If the IO gets even the slight hint that truthful information is not being volunteered, you might face serious consequences.

If you are comfortable taking risks and still can sleep well at night, go ahead wait for the interview and as other posters have stated, everything might work out well and you will be a citizen.

If you want to play it safe, I would say just withdraw your application. There are a lot of ambiguities about AC21 but there is absolutely no ambiguity in this case - it is clear cut grounds for denial. They can and will initiate deportation proceedings if they decide to deny (because they cannot rescind since it's been more than 5 years - statute of limitations applies)

As an alternative approach, you could try doing the following:

0. Hire an attorney
1. Withdraw application
2. Send in AC21 documentation
3. Wait for a few months
4. Provide responses to any RFEs.
5. Apply for citizenship
 
fabolous said:
obajaj,
I have also heard that many of these IOs don't know enough about the overly complex green card process. I doubt if they know about AC-21 clause. My take on this citizenshjip application is that, to the extent that you haven't committed a crime or a fradulent activity with respect to your immigration status, you should be fine.
Click to expand...

Fabolous,

Given that the consequences of things going wrong are extremely serious, I would not take this approach at all.

On the contrary I would plan with absolute paranoia - I would assume every IO is extremely well versed with the law and is out to enforce it with full penalty. Having planned that way, I would then hope I get the kind of IO you are talking about :-)

I do not want to rattle Obajaj or anyone else but I think it is better to be cautious rather than have your whole life turned upside down.
 
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koolvik7 said:
Obajaj,
After reading your case, I am very optimistic and confident that you will not have any issue with the approval of your N-400 petition. The reason of my confidence are the seven cases that I have tracked on this forum. These cases were very similar to yours and every single one of them has been approved (100% success).
Click to expand...
Koolvik,

May I request you to please post their user-IDs? I would like to to through their posts. Thanks.
 
Hi immigrateful,

Where does it say that they can deport you if they cannot rescind your I485 approval? (It being over 5 years since it was approved). Did you read this somewhere?
In the Adjucator's field manual it just indicates that you cannot rescind the I485 approval if its been over 5 years. I'm assuming that if you cannot "rescind" an approval, that it still remains valid and that deportation does not come into the picture. Is that correct?

Another question: You recommended that I withdraw my N400 application and then send in AC21 documentation. Wouldn't I be running an equal risk if I do that, as its the same AC21 interpretation that comes in the picture (as is now)?

Hi fabolous,

Thanks for sharing your information and thoughts. My "PD" (although I'm not sure if they call it that) is not yet set, as I haven't received a notice of action or reciept for my application yet. I sent in my application around July 20th, 2007 (USCIS received it on July 23, 2007) and am waiting for the receipt notice.
 
obajaj,

Were you active on the R2I forum? Your ID sounds familiar....
Anyway, I don't see much problem with your case ( since you did take up similar employment).
But remember, these cannot be viewed as legal advice, act at your own risk as always.

As someone said, if you want to sleep well and are very worried about this, hire a lawyer....
And don't try to "hide" something etc etc...
 
Disclaimer: I am just another N-400 applicant.

obajaj said:
Hi immigrateful,

Where does it say that they can deport you if they cannot rescind your I485 approval? (It being over 5 years since it was approved). Did you read this somewhere?
Click to expand...
Check this post by McMahon: http://immigrationportal.com/showpost.php?p=1737837&postcount=10
In the Adjucator's field manual it just indicates that you cannot rescind the I485 approval if its been over 5 years. I'm assuming that if you cannot "rescind" an approval, that it still remains valid and that deportation does not come into the picture. Is that correct?
Click to expand...

If they cannot rescind your green card and they still want to deny your application for naturalization, they have the option to place you in removal proceedings. This is because they can determine that your permanent resident status was acquired unlawfully (because you were unemployed at that time with no offer for future employment)

This is of course in theory. They might be liberal in practice.

Another question: You recommended that I withdraw my N400 application and then send in AC21 documentation. Wouldn't I be running an equal risk if I do that, as its the same AC21 interpretation that comes in the picture (as is now)?
Click to expand...

I guess you would be still be running a risk - not sure if it is an equal or reduced risk but that's what an attorney recommended in my consultation with her. I guess it buys you more time, makes apparent the fact that you are making an attempt to follow rules/procedures set forth by USCIS, etc.
 
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I'm not sure if I went through the same version of AC-21 back in 2001/2002 as being discussed here on this thread. The AC-21 clause I read at the time stated that it is "suggested" (not "required") to notify INS of your new job. My lawyer didn't suggest sending the AC-21 as that only delays the application. I have known a lot of people who got their GCs after changing jobs after 180 days of 485 and never sent AC-21.

I wouldn't recommend withdrawing the application as I'm not doing that myself. I guess I'm not paranoid enough and can sleep pretty well, given the mild summer in bay area. Anyway, I think I have pretty good line of reasoning along with all the documentation like layoff letter, offer letter of the new company with job description, and I'm ready to go to IO and answer all the questions truthfully. Now if he decides to not grant me USC and instead deport me, well, my home country is waiting. Of course, I'll let him know the $$$ I'll be moving out of US as a result of his/her action:-) Would love to see his/her reaction.
 
fabolous,

My point exactly! At the time most of us used AC21 (2001/2002) there were no rules set in stone about "needing" to send documentation. I believe they used the phrase "it is expected that". There were also no exact rules about when one has to start working for the new employer. As I said earlier, what happens if you're laid off on Day 1 (beyond 180 days of filing I485), and your I485 is approved on Day 2, and you start employment with the new company on Day 3?

Wouldn't it be normal to expect a few days of gap to find a new job if you were suddenly layed-off?

I don't think I'm going to lose sleep over this anymore (I have had enough of USCIS/BCIS/INS nonsense in the past), however, I do want to be armed with the correct information and I will resort to a legal stand if needed. I can't believe that lawmakers in this country can't even do a decent job of being explicit in the laws they make. Even my pet dog is explicit/specific about the kind of food he wants to eat!
 
immigrateful said:
Koolvik,

May I request you to please post their user-IDs? I would like to to through their posts. Thanks.
Click to expand...

Please do the search on following posts (all successfully approved cases) from:
  • obongo
  • PR2001Cit2007
  • reddyrx
  • pal_bay
  • N400_SNA
  • chicago_m

Each case above is different where obongo did not even 'inform' USCIS about the AC21 (not even 1 employement related question was asked) while PR2001Cit2007 actively informed USCIS about the job change. I absolutely do not see the need to withdraw the application, please review reddyrx's case for sure.
 
koolvik7 said:
Each case above is different where obongo did not even 'inform' USCIS about the AC21 (not even 1 employement related question was asked) while PR2001Cit2007 actively informed USCIS about the job change. I absolutely do not see the need to withdraw the application, please review reddyrx's case for sure.
Click to expand...

Koolvik,

Thanks for posting this - I spent quite some time going through a majority of the threads these users were involved in. It was comforting to hear first-hand experiences. It appears to me the the IO has a lot of leeway in making a decision on this and so far they have all gone in favor of the applicant. I am a lot less worried now and think Obajaj should be OK.

However there are frequently comments like "The IO then consulted with his supervisor" or "...IO came back after 10 minutes", etc. N400_SNA was almost chided for not keeping USCIS informed by not filing the AC21 documents.

Since this is entirely at the discretion of the IO, I'm hoping we are not pushing our luck too far.

As someone posted in one of the threads - it depends on your risk taking profile.
 
I think having many discretionary powers can be a good or a bad thing, based on how good a judgement the IO makes.
If the IO gets the wrong impression of some facts, the same discretion can be a bad thing.

So in other words, I wonder if those discretionary powers are generally used for the benefit of or to the disadvantage of the applicant. Judging from reading the Adjudicator's Field Manual it seems like this discretion can be used either way for some gray areas of the law. Obviously, for things that are not gray (i.e. black or white facts and their corresponding laws) the IO might get into trouble if he/she uses his/her discretion instead of the law.

In the case of AC21, most of it is gray, so I guess the IO must exercise more discretion than "going by the book".

About the memos that were later added to AC21... (Which made AC21 more restrictive in some areas [like needing to be working for a "similar" job on the day of I485 adjudication], but also more liberal in others [like being able to work in any other geographical location in the U.S., with no salary/title restriction])...

Someone earlier on some other thread mentioned that "memos" are not really laws. I wonder if items in a memo come more under "discretion" or come under "law"?
 
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