I just read this on the Mathew Oh site(www.immigration-law.com)
How does this affect the change of employers after 180 days of RD of i-485? Is the 180 day rule cast in stone or is there still a lot of ambiguity?
Thanks
Updated 11/27/01: Obligation of Employment After Green Card
One of the most frequently asked questions nowdays is the issue of work for the employer who sponsored the employment-based immigrant petition for him or her. There is no hard and fast rule as to how long he/she should work for the employer after obtaining the green card. The issues remain two folds: Whether there exists such job at the time of adjudication of 485 application, and more importantly whether both the employer and the alien employee intended to employ/work for the petitioned job and for the specific employer for a period of "indefinite" duration. Deviation from these requirements may face either a misrepresentation or a fraud charge if it is detected by the INS afterwards.
Let\'s look at a few examples. First, if the fact reflects that there existed the petitioned job immediately on or after the I-485 approval and both employer and alien employee did not have any other intention but to keep the employmentm, but because of the recent economic recession, the alien had to be laid off not too long after the green card approval. In this situation, unless the employer had a clear knowledge of need for his/her lay-off and intention to lay him/her off before the green card is approved, the alien\'s green card will not be affected, no matter how soon he/she was terminated from the job by the employer. Why? Because neither employer nor employee had a preconceived intent not to keep the employment for a period of indefinite duration.
Let\'s change the fact slightly. The facts are same but employer intended to keep him/her for a fix period of time such as six months at the time 485 is approved. Unless the employee had a knowledge of the employer\'s intention, the alien committed no wrongs, but the employer probably committed a misrepresentation or fraud. In all likelihood, the alien\'s green card may not be affected, but the employer can be charged for an offense of fraud or misrepresentation.
Let\'s change the fact again. Both employer and employee had no intention but to keep the employment and "for a period of indefinite duration." However, the petitioned job did not exist and the alien was employed in a different occupational classification on and after the date of approval of I-485. Since both employer and employee knew that the petitioned job no longer existed, we have a problem of misrepresentation or fraud.
Now let\'s look at the alien\'s state of mind and conduct. If the alien formed an intention not to work for the petitioned employer before the green card was approved, it is obvious that the alien committed a fraud. Most typical circumstantial evidence would be alien\'s application for employment with other employers or conditionally accepting the employment.
Let\'s change the fact on the part of the alien employee. Let\'s assume that the petitioned job existed and employer\'s intent to keep the employment is solid clear. However, let\'s assume that there is no evidence as to what the employee\'s intent was on or after the green card approval. Alien now submits resignation and takes another job in one week or one month or two month or four months or six months or one year. The INS may try to use each of this period as circumstantial evidence to establish the state of mind of the alien at the time the INS approved his/her 485 applications. The shorter the period is, the more persuasive is the INS argument that at the time INS actually approved I-485, the alien had no intention to work for the petitioned employer. The shorter the period is, the more persuasively the INS will argue "presumption of misrepresentation or fraud." Some people often asked this reporter whether he/she could take another job rather than petitioned employer up
How does this affect the change of employers after 180 days of RD of i-485? Is the 180 day rule cast in stone or is there still a lot of ambiguity?
Thanks
Updated 11/27/01: Obligation of Employment After Green Card
One of the most frequently asked questions nowdays is the issue of work for the employer who sponsored the employment-based immigrant petition for him or her. There is no hard and fast rule as to how long he/she should work for the employer after obtaining the green card. The issues remain two folds: Whether there exists such job at the time of adjudication of 485 application, and more importantly whether both the employer and the alien employee intended to employ/work for the petitioned job and for the specific employer for a period of "indefinite" duration. Deviation from these requirements may face either a misrepresentation or a fraud charge if it is detected by the INS afterwards.
Let\'s look at a few examples. First, if the fact reflects that there existed the petitioned job immediately on or after the I-485 approval and both employer and alien employee did not have any other intention but to keep the employmentm, but because of the recent economic recession, the alien had to be laid off not too long after the green card approval. In this situation, unless the employer had a clear knowledge of need for his/her lay-off and intention to lay him/her off before the green card is approved, the alien\'s green card will not be affected, no matter how soon he/she was terminated from the job by the employer. Why? Because neither employer nor employee had a preconceived intent not to keep the employment for a period of indefinite duration.
Let\'s change the fact slightly. The facts are same but employer intended to keep him/her for a fix period of time such as six months at the time 485 is approved. Unless the employee had a knowledge of the employer\'s intention, the alien committed no wrongs, but the employer probably committed a misrepresentation or fraud. In all likelihood, the alien\'s green card may not be affected, but the employer can be charged for an offense of fraud or misrepresentation.
Let\'s change the fact again. Both employer and employee had no intention but to keep the employment and "for a period of indefinite duration." However, the petitioned job did not exist and the alien was employed in a different occupational classification on and after the date of approval of I-485. Since both employer and employee knew that the petitioned job no longer existed, we have a problem of misrepresentation or fraud.
Now let\'s look at the alien\'s state of mind and conduct. If the alien formed an intention not to work for the petitioned employer before the green card was approved, it is obvious that the alien committed a fraud. Most typical circumstantial evidence would be alien\'s application for employment with other employers or conditionally accepting the employment.
Let\'s change the fact on the part of the alien employee. Let\'s assume that the petitioned job existed and employer\'s intent to keep the employment is solid clear. However, let\'s assume that there is no evidence as to what the employee\'s intent was on or after the green card approval. Alien now submits resignation and takes another job in one week or one month or two month or four months or six months or one year. The INS may try to use each of this period as circumstantial evidence to establish the state of mind of the alien at the time the INS approved his/her 485 applications. The shorter the period is, the more persuasive is the INS argument that at the time INS actually approved I-485, the alien had no intention to work for the petitioned employer. The shorter the period is, the more persuasively the INS will argue "presumption of misrepresentation or fraud." Some people often asked this reporter whether he/she could take another job rather than petitioned employer up