All the OldTimers here What do you think ???

G

GC_seeker_CA

Registered Users (C)
Please provide your thoughts on the following :

If the I 140 is approved and also an individual has an EAD card and the I 485 is pending.
Under such circumstances if the individual gets laid off:

1) Is the individual still in valid status ? Which status ?

2) Can the individual accept employment with another company ?

3) if Yes, Does the new employer have to apply for H1B - H1B transfer OR use EAD to join new employer ?

4) What happens to the pending I 485 petition ?

5) Does the address have to remain same as the address stated on the I 485 petition ?

Many thanks

Raj.
 
Raj,
If I'm not mistaken you can change jobs after 180 days aftre filing your AOS.
So if you get laid off you shouldn't have any problems. you can find another position and I don't think you would be out of status either.
 
1.) Is the individual still in valid status ? Which status ?
Yes Your status is valid and is called "AOS Pending" or "I485 Pending"

2) Can the individual accept employment with another company ?
Yes, If 180 days have not passed then you can use AC21. Informing INS about AC21 is expected but is not mandatory.

3) if Yes, Does the new employer have to apply for H1B - H1B transfer OR use EAD to join new employer ?
Its considered safer If the new employer can get a H1, just in case AOS is denied. You can use EAD without a problem to work for anyone anywhere as long as the job / responsibilities remain similar. if different count on not getting a RFE

4) What happens to the pending I 485 petition ?
It will stay as it is and in due course of time will get approved.

5) Does the address have to remain same as the address stated on the I 485 petition ?
No, BCIS requires you to inform within 10 days of move, you have to file form AR11.

Hope that helps
 
its really helpful

hi amit

i have those same questions, your answer really helful, just one more

What is the legal process for filing AC21?
 
Depend

It's my judgement:(Same Titile and resposibility)

1. If it's more than 180 days, he has valid status he can work on EAD. If he is less than 180 days and laid off, Only way H1 should/must have to have H1/I-94 other wise out of status.

2. Yeah he can accept job : if he has EAD and pending I485 >180 days or H1/I94, he can transfer

4. If >180 days he can continue this I 485 if Less than 180 days, new employer has to apply for I 140/I485

5. He has to notify ISN in 10 days.

Hope this will work
 
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Here we go again...

Originally posted by prod123
It's my judgement:(Same Titile and resposibility)

1. If it's more than 180 days, he has valid status he can work on EAD. If he is less than 180 days and laid off, Only way H1 should/must have to have H1/I-94 other wise out of status.

2. Yeah he can accept job : if he has EAD and pending I485 >180 days or H1/I94, he can transfer

4. If >180 days he can continue this I 485 if Less than 180 days, new employer has to apply for I 140/I485

5. He has to notify ISN in 10 days.

Hope this will work
Click to expand...

We've been reading/talking about this 180-day thing over and over here and people still don't realize the simple fact --

You don't have to stay with the sponsoring company for 180 days unless your I-485 is adjusted in less time. Another words, you could change job the minute you filed I-485 as long as the new job is similar to the old one and your I-485 is (will be) pending for more than 180 days ( it's like 3x180 days now ). Again this 180-day has nothing to do with your staying time with the sponsor...
 
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mjagannt
There is no defined process for filing AC21, INS/BCIS has stated that it expects (not requires) it to be informed about job changes and using AC21, but most lawyers wait for the RFE to make a AC21 case, some insist that BCIS should be notified.



prod123/ Jan485

Both of you are right and wrong at the same time.

The status is legal and as I said is called "AOS pending"

180 days period is important because

- If I140 is pending and the employer withdraws it... you are screwed.
- If the case is adjudicated within 180 days you cannot enjoy AC21 portability (this will never happen)

Read the following

http://www.murthy.com/chat1209.html
Chat User : What if an employee is laid off before completing 180 days after filing the I-485 and has an I-140 pending? Can the employee change employers and still preserve the AOS?

Attorney Murthy : If the employer revokes the underlying I-140 petition and the INS acts on that revocation within the 180 days then the INS may terminate the case. The way AC21 law is written, the employee can gain approval of the AOS, as long as it is the "same or similar" job as long as the I-485 remains unadjudicated for 180 days. The issue pertaining to the need to work for the LC sponsor during the initial 180 days has not yet been set forth in regulations, as the regulations still have not been issued.


http://www.murthy.com/chat1230.html
Chat User : Can the AC21 clause be used having an approved EAD and AP and being laid off before 180 days of I-485 receipt date?

Attorney Murthy : The INS has verbally stated that the AC21 portability should be able to be used in such cases since the INS will probably take longer than 180 days to adjudicate the I-485 case. The law only refers to AOS adjudication and allowed portability to punish the INS for their slowness in processing cases. So, until the INS completes I-485 cases in fewer than 180 days, the INS has verbally confirmed that it appears the person may enjoy AC21 portability. Without any written regulations, there could be a risk if the INS issues regulations against the common sense reading of the law.
 
Hey we are talking about after I-140 approval!

Originally posted by amitGreen
mjagannt
There is no defined process for filing AC21, INS/BCIS has stated that it expects (not requires) it to be informed about job changes and using AC21, but most lawyers wait for the RFE to make a AC21 case, some insist that BCIS should be notified.



prod123/ Jan485

Both of you are right and wrong at the same time.

The status is legal and as I said is called "AOS pending"

180 days period is important because

- If I140 is pending and the employer withdraws it... you are screwed.
- If the case is adjudicated within 180 days you cannot enjoy AC21 portability (this will never happen)

Read the following

http://www.murthy.com/chat1209.html
Chat User : What if an employee is laid off before completing 180 days after filing the I-485 and has an I-140 pending? Can the employee change employers and still preserve the AOS?

Attorney Murthy : If the employer revokes the underlying I-140 petition and the INS acts on that revocation within the 180 days then the INS may terminate the case. The way AC21 law is written, the employee can gain approval of the AOS, as long as it is the "same or similar" job as long as the I-485 remains unadjudicated for 180 days. The issue pertaining to the need to work for the LC sponsor during the initial 180 days has not yet been set forth in regulations, as the regulations still have not been issued.


http://www.murthy.com/chat1230.html
Chat User : Can the AC21 clause be used having an approved EAD and AP and being laid off before 180 days of I-485 receipt date?

Attorney Murthy : The INS has verbally stated that the AC21 portability should be able to be used in such cases since the INS will probably take longer than 180 days to adjudicate the I-485 case. The law only refers to AOS adjudication and allowed portability to punish the INS for their slowness in processing cases. So, until the INS completes I-485 cases in fewer than 180 days, the INS has verbally confirmed that it appears the person may enjoy AC21 portability. Without any written regulations, there could be a risk if the INS issues regulations against the common sense reading of the law.
Click to expand...

So I was right! -- GC_seeker_CA was specifically asking if I-140 is approved....
It would certainly be a whole different scenario if I-140 is pending...
 
Guys! Please be careful while posting.

GC_seeker_CA

Amitgreen has posted the questions asked by users of murthy.com which are relevant to concurrent filing. They are not relevant in your case.

See my responses below;

If the I 140 is approved and also an individual has an EAD card and the I 485 is pending.
Under such circumstances if the individual gets laid off:

1) Is the individual still in valid status ? Which status ?

The individual is in valid status, AOS. However, if he is fired within 180 days after filing I-485, he needs to be careful about onething. His previous employer should not withdraw his I-140 within 180 days of filing 485. Your 485 is based on this I-140 approval. If it is withdrawn, the basis for your 485 is gone. You are screwed-up. Normally not many employers do that, unless you really have bad relationship with them. AC21 cluase is effective after 180 days of applying.

2) Can the individual accept employment with another company ?

The individual can accept employment with another company with the same job description and pray that his I-140 is not withdrawn.Even if it is withdrawn, and the BCIS doesn't act on it within 180 days of filing 485, he is safe.

3) if Yes, Does the new employer have to apply for H1B - H1B transfer OR use EAD to join new employer ?

In case the AOS application is denied, you can still continue on H1. So, better get one.

One can also join the new employer with EAD and hope nothing goes wrong. Mind you, if this is the case and your AOS is denied, you are not immediately out of status. You are still in status of AOS, when you appeal the denial. But, if your 485 denial is based on I-140 withdrawl from previous employer, you are screwed-up.

4) What happens to the pending I 485 petition ?

It continues, unless your I-140 is withdrawn within 180 days of filing 485.

5) Does the address have to remain same as the address stated on the I 485 petition ?

Not necessary. If onces address is changed, he has to send the address change form to BCIS within 10 days.

- Bob
 
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