140(NIW)/485 pending, lost job - urgent, need suggestions!

[griggs]

I filed NIW 140/485 at Vermont center in June 03, while doing materials science postdoc at a university. Three weeks ago I lost the postdoc job due to funding problem of my boss. The university sponsored me H-1, effective untile June 05. I have an EAD based on 485 valid from May 04 to May 05. My quesitons are as follows:

1. Am I out of status now? I am pretty sure the university won't notify the INS about the termination of my job.
2. If I found a staff job at the same university but in a different area, say in social science, would there be any problem with my NIW 140/485 which was based on my research on materials science?
3. Is it possible for me to use my EAD to work until May 05 (my current H-1 expires until June 05), and then apply for H-1 extension in case 140 problem?

Thanks in advance!

140 (NIW) EAC0318051***, ND 6/2/03
485 EAC0402151***, ND 10/30/03

 

[Gegemon]

1. Am I out of status now? I am pretty sure the university won't notify the INS about the termination of my job.

Sorry to hear about your job loss. You are not out of status since your NIW petition is still pending. If it gets denied later on - then you become out of status from the day you lost your H1B. After you lost your job you have a couple of months to find another job and this "out-of-status" time interval will be forgiven. If more than 1-2 months - make sure you stay out-of-status no more than 180 days - so you can use section 245 later on. By law, University has to notify INS of your layoff and revoke your H1B visa. It may take them 3 months or so. Or they might not do that at all. It should not affect your pending NIW/AOS applications.

2. If I found a staff job at the same university but in a different area, say in social science, would there be any problem with my NIW 140/485 which was based on my research on materials science?.

Should be a similar job description. Otherwise you loose your NIW portability option - if INS ever asks for your employment letter (they might not). Social science would not work for a materials science postdoc. Another materials science postdoc in a different university will work. Anyway, ask them for H1B visa.

3. Is it possible for me to use my EAD to work until May 05 (my current H-1 expires until June 05), and then apply for H-1 extension in case 140 problem?.

You can start working on your EAD card. It is valid till it is revoked by INS for whatever reason. But definitely ask for H1B transfer from your new employer. Do not forget H4 transfer for your spouse and dependents (if married). H1B through University does not count against H1B annual cap, so if you go outside of the University, you need to have an H1B visa number available to you. Starting October 2004 - H1B visas will go fast! May be they will last only till the end of this calendar year, or less. Good luck!

EB12 - OR - VSC
ND: 04-02-2003

 

[ETA-GC]

Couple other comments.

#1 It sounds like your I-140 isn't approved -- this could complicate things since until recently the I-140 had to be approved to use AC21 (plus the I-485 had to have been pending for > 180 days). Recently though, the USCIS has indicated that all that will matter is that the I-140 / I-485 be filed and pending for > 180 days, although there's been no official publication to this effect yet.

#2 Not sure if you knew this but you are technically elligible to collect unemployment insurance (because you are "able and willing to work" due to your having Adjustment of Status status and having the EAD). That said, *some* recommend against collecting UI, as it could possibly affect the GC process (others though say that UI should have nothing to do with this -- it's basically employer managed insurance that you paid into and collecting it shouldn't reflect on your chances of becoming a "burden of the state"). Your call...

#3 Obviously, if you work on an EAD, you'll need to have advance parole to travel (this wasn't needed previously with the H status).

Your biggest hurdle will be finding a job that matches the one for which the LC was done. I'm guessing that, given that you are using NIW, the job description could be pretty specific -- I'm not sure how flexible AC-21 will be if there is an RFE related to this.

FWIW, I've had some feedback on this forum that indicates that the chances of an RFE are low and other feedback which says that there is usually an RFE to check on current employment...

Good luck!

ETA

 

[griggs]

Gegemon and ETA, thanks a lot!

 

[griggs]

can I use my EAD if I change to H-4 status?

Sorry to hear about your job loss. You are not out of status since your NIW petition is still pending. If it gets denied later on - then you become out of status from the day you lost your H1B. After you lost your job you have a couple of months to find another job and this "out-of-status" time interval will be forgiven. If more than 1-2 months - make sure you stay out-of-status no more than 180 days - so you can use section 245 later on. By law, University has to notify INS of your layoff and revoke your H1B visa. It may take them 3 months or so. Or they might not do that at all. It should not affect your pending NIW/AOS applications.


Should be a similar job description. Otherwise you loose your NIW portability option - if INS ever asks for your employment letter (they might not). Social science would not work for a materials science postdoc. Another materials science postdoc in a different university will work. Anyway, ask them for H1B visa.


You can start working on your EAD card. It is valid till it is revoked by INS for whatever reason. But definitely ask for H1B transfer from your new employer. Do not forget H4 transfer for your spouse and dependents (if married). H1B through University does not count against H1B annual cap, so if you go outside of the University, you need to have an H1B visa number available to you. Starting October 2004 - H1B visas will go fast! May be they will last only till the end of this calendar year, or less. Good luck!

EB12 - OR - VSC
ND: 04-02-2003

Is has been a month since I was laid off. I am considering changing into H-4 based on my spouse's H-1B. I have a few questions:
1. Can I work on my own EAD based on my pending 140/485 while in H-4 status?
2. My employer notified USCIS a week ago. Does a gap of one month affact my status change to H-4?
3. Can I apply for H-4 by myself, or it must be done my spouse's empolyer?

Thank you so much! I greatly apprecite your time answering my questions.

 

[Gegemon]

1. Can I work on my own EAD based on my pending 140/485 while in H-4 status?

Well, H4 status assumes that you do not work at all. If you start using EAD to work while on H4 status - this should cancel your H4 status

2. My employer notified USCIS a week ago. Does a gap of one month affact my status change to H-4?

Did your employer tell you about that or you saw on-line change for your previously filed H1b application? For USCIS it will take 2-3 months to process your employer's request to revoke your H1b visa. Meanwhile you should be OK to change your status to H4 or another H1b if you can find another job.

3. Can I apply for H-4 by myself, or it must be done my spouse's empolyer?

That would be form I539 "Application to extend/change nonimmigrant status". Normally emloyer does it for your spouse. But now I am looking at this form - there are no entries required to be filled out by your spouse's employer - you only have to reference INS receipt number of "separate petition previously filed by your spouse" for her H1B.

Good luck.

 

[griggs]

Thanks Gegemon.