180 Day Rule ??

G

gsk

Registered Users (C)
Do we need be on EAD to be able to use 180 Day Rule ?

    I filed my I485 2years back and I am currently on H1B, not using EAD eventhough
    I am holding a Valid EAD ? Am I eligible to switch jobs if I get laid off ??

    (for those who don\'t know 180 Day Rule: switching jobs 6 months after filing 485 )

    Appreciate any response
    Thanks..
    gsk.
 
No Title

I would personelly suggest the following: 1. Wait until April 18. 2. Use the EAD for the new job. I hope the gurus here to tell me if I am wrong.
The reason for this is that after April 18, you have already passed 180 days either from the date you filed 485 or from the date the AC 21 became the law. By doing this way, the risk shall be minimum, because the only possibility you will still have trouble is if INS regulation is published and that the 180 rule only applys to people who filed 485 after AC 21 was signed. In all other explanations you are in good shape. But the possibility of having the former extremist explanation is minimum, since one INS officer has already indicated that INS views AC 21 retroactive.
Also, the reason I suggest you use EAD is that otherwise you have to let a new employee file a new H1 application for you, which, I think there is a risk giving INS a chance thinking you are intending to switch job. Why it matters since its after April 18, you would ask? And the reason is that how about if your 485 get approved before April 18 (since it\'s already there for 2 years!). In that case the INS can argue that at the time your 485 is approved, you do not have the intension to work for the employer permanently (since you were filing H1 with a new employer!), which grounds the reason INS can revoke your GC. Then, you might ask, what if you use EAD? Well, since at that time you can prove you are already layed off, so it shall be ok.

By the way, can anybody explain what will be the document which indicates it\'s a lay off, not a quit? Thanks.
 
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I suppose it would be a discharge letter from the firm, clearly stating that you are being asked to leave and not leaving on your own.
 
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I think you have explained the whole situation EXTREMELY WELL & CLEARLY. And a a letter of resignation would probably point to a "quit" and the absence of one would probably point to a lay-off. Also, a letter from the employer indicating a lay-off woult definitely make it a lay-off....
 
No Title

Does it have to be lay off to switch jobs? In my case I am not happy with my consulting company and my client has offered me a full time position. I guess I would have to quit inorder to take up the new job, are there any risks involved? My ND is Oct 5th, 99.
Please advise....
 
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I agree with what you said. But the 180 days rule should also apply to
those who switch job voluntarily. The law is not to protect those who
filed 485 over 6 months from being laid off, but to give them a chance
to choose what they want to do since it\'s way too long for anyone to
wait for 485 to be approved.
 
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atoz,

excellent explanation, really appreciate your thought on this..

Thanks
 
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Suppose EAD is in progress and you get laid off, since you are already is AOS will it be better to wait for a month or two or go for h1 transfer? In this case you can prove tio ins that company has laid you off and that\'s why you had to file for H-1 transfer. How does it affect the GC process?
 
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Zeedwang

If your ND is 10/99, I beleive it is meaning less to change the employer now. After sailing through rough waters for years, why should you invoke unnecessary complications (if any), if your release date is within days.

Just my 2 cents.

Also my ND is 3/2000. I am waiting for the same reasons.
 
No Title

Comments on this theory -

180 day rule only for voluntary job changers - INS says you can change jobs after 180 days and keep 485 going;

If someone is laid off BEFORE 180 days - does this open up the option of sitting at home till 180 days are up, and then taking up a new job in the same field on 181st day. In this case, he is not changing job before 180 days, only leaving, and involuntarily.
 
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