Anyone denied CZ for leaving employer before 180 days of AOS?

[hipka]

Heres the deal,
Person xyz files for AOS with employer A. He leaves his job with employer A before 180 days. Employer A does not revoke his I-140 and agrees this is a temporary layoff. xyz joins employer B and after 180 days informs USCIS using AC21. xyz receives his GC and lives happily for 5 yrs without issues.

Xyz now files for citizenship. Is USCIS likely to rake up this issue again? Is there anyone out there who has had trouble with this? Technically xyz has done nothing wrong but it is difficult to prove calid job offer in the period between leaving employer A and 180 days. Any expert comments on this?

 

[siva_c]

Hi,

I left my previous employer 3 months after I got my GC. I got my citizenship
in Jan 06 without any problems.

I was worried about this after my citizenship interview because the USCIS officer wanted a letter from my previous employer verifying my employment dates with them. I sent the letter to the USCIS office within a few days
after the interview. I got the oath ceremony letter after a month - in the same
time frame as others who had the interview at the same time as I did.

 

[hipka]

The 180 days is just a rule of thumb. It is not cast in stone. Individual situations can of course differ. In particular, layoffs are not an issue.
As Rajiv Khanna said so nicely here: http://immigrationportal.com/showthread.php?t=154533
"Each case has to be determined upon its own merits."

The 180 rule is a rule of thumb only after GC approval. The question I have asked relates to change of employment before 180 days of filing the 485 (NOT APPROVAL). I believe the 180 day rule here is cast in stone and not a rule of thumb!!

 

[GeeC]

Heres the deal,
Person xyz files for AOS with employer A. He leaves his job with employer A before 180 days. Employer A does not revoke his I-140 and agrees this is a temporary layoff. xyz joins employer B and after 180 days informs USCIS using AC21. xyz receives his GC and lives happily for 5 yrs without issues.

Xyz now files for citizenship. Is USCIS likely to rake up this issue again? Is there anyone out there who has had trouble with this? Technically xyz has done nothing wrong but it is difficult to prove calid job offer in the period between leaving employer A and 180 days. Any expert comments on this?

In my opinion AC21 should not, in fact cannot affect CZ. I think the case in point is more complicated than AC21. xyz lleft the employer before 180 days of filing AOS and therefore he/she did not meet the requirement that is mandated by AC21. Only consolation here is that the employer did not revoke I-140, but I think there is no provision in the law that entertains this. I know INS, in many cases, did not create any problems at the time of I-551 stamping.

Now will they dig deeper during naturalization process as they have access to your complete A file? No one can say for sure. I would consult a good lawyer who is experienced in AC21 related issues.

 

[hipka]

In my opinion AC21 should not, in fact cannot affect CZ. I think the case in point is more complicated than AC21. xyz lleft the employer before 180 days of filing AOS and therefore he/she did not meet the requirement that is mandated by AC21. Only consolation here is that the employer did not revoke I-140, but I think there is no provision in the law that entertains this. I know INS, in many cases, did not create any problems at the time of I-551 stamping.

Now will they dig deeper during naturalization process as they have access to your complete A file? No one can say for sure. I would consult a good lawyer who is experienced in AC21 related issues.

Case is complicated for sure but the person infact informed USCIS that the job change took place before 180 days and they approved it despite knowing this fact. Is it not unfair if they scrap the desicion despite nothing new showing up at CZ time?? Can they legally overturn their own desicions without new facts being uncovered??

 

[hipka]

In my opinion AC21 should not, in fact cannot affect CZ. I think the case in point is more complicated than AC21. xyz lleft the employer before 180 days of filing AOS and therefore he/she did not meet the requirement that is mandated by AC21. Only consolation here is that the employer did not revoke I-140, but I think there is no provision in the law that entertains this. I know INS, in many cases, did not create any problems at the time of I-551 stamping.

Now will they dig deeper during naturalization process as they have access to your complete A file? No one can say for sure. I would consult a good lawyer who is experienced in AC21 related issues.

Why consult a lawyer, USCIS has clearly given guidance that GC is for future job and as long as I-140 is valid its OK. The I-140 is valid as long as the employer does not cancel it, is this position valid??

Question 10. Should service centers or district offices deny portability cases on the sole basis that the alien has left his or her employment with the I-140 petitioner prior to the I-485 application pending for 180 days?
Answer: No. The basis for adjustment is not actual (current) employment but prospective employment. Since there is no requirement that the alien have ever been employed by the petitioner while the I-140 and/or I-485 was pending, the fact that an alien left the I-140 petitioner before the I-485 has been pending 180 days will not necessarily render the alien ineligible to port. However, in all cases an offer of employment must have been bona fide. This means that, as of the time the I-140 was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.

 

[hipka]

In my opinion AC21 should not, in fact cannot affect CZ. I think the case in point is more complicated than AC21. xyz lleft the employer before 180 days of filing AOS and therefore he/she did not meet the requirement that is mandated by AC21. Only consolation here is that the employer did not revoke I-140, but I think there is no provision in the law that entertains this. I know INS, in many cases, did not create any problems at the time of I-551 stamping.

Now will they dig deeper during naturalization process as they have access to your complete A file? No one can say for sure. I would consult a good lawyer who is experienced in AC21 related issues.

So the final note is that no one is sure, not even USCIS. Why are immigrants being penalized for lack of clarity??

Question #1:Hi. In my case I changed jobs about 1 month after filing my I-485 because my employer went out of business. That happened 10 months ago. My I-140 was approved prior to filing I-485 and to the best of my knowledge my previous employer hasn't withdrawn it. What worries me is the wording "I-140 immigrant petition shall remain valid when an alien changes jobs, if the I-485 has been filed and remained unadjudicated for 180 days or more." At the time of changing jobs the I-485 hadn't been pending for 180 days yet. So, is my I-485 still valid? If it is, what documents should I file with the BCIS to prove that my current job is the same as the one before? How soon after changing jobs must I do it? Are there precedents, in which a green card has been denied in cases like mine?

Carl: Good question. There is a lot of confusion, not only among immigrants, but among immigration attorneys as well, as to the meaning of the 180-day rule. It is not necessary for you to remain with your initial employer for 180 days or more after the I-485 is submitted. What is important is that the I-485 not be adjudicated during the first 180 days after submission. In your case, it has been over 10 months since the I-485 was submitted, so the 180-day portability rule applies.

You must supply the USCIS with two documents. The first document is a letter, stating that, at the time you submitted the I-485, it was your intention to remain with your initial employer indefinitely. The second document is a letter from your new employer stating that your new job is the same or similar to the job for which your labor certification and visa petition were approved. These letters may be submitted at any time, but the process is much smoother if they are submitted before you receive any notification regarding your application, from the USCIS.

The employer letter should contain the job title, job description and salary of the new job. To determine whether the new job is the same or similar to the old job, the USCIS consults the Labor Department Dictionary of Occupational Titles (DOT) or the online O*NET Classification System (one of the two), or similar publications. The memo prohibits INS officers from denying I-485 based on failure to demonstrate that the new job is in the same or a similar occupation as the initial job unless they have consulted, on a case-by-case basis with USCIS headquarters. Shusterman.com links to the memo at http://shusterman.com/toc-gc.html#2A1 and to the DOT and the O*NET from http://shusterman.com/toc-dol.html#7.

 

[WorryForGC]

AC21 requmt mandate is 180 days pending, not with the GC sponsor, he should be fine

In my opinion AC21 should not, in fact cannot affect CZ. I think the case in point is more complicated than AC21. xyz lleft the employer before 180 days of filing AOS and therefore he/she did not meet the requirement that is mandated by AC21. Only consolation here is that the employer did not revoke I-140, but I think there is no provision in the law that entertains this. I know INS, in many cases, did not create any problems at the time of I-551 stamping.

Now will they dig deeper during naturalization process as they have access to your complete A file? No one can say for sure. I would consult a good lawyer who is experienced in AC21 related issues.

 

[GeeC]

Case is complicated for sure but the person infact informed USCIS that the job change took place before 180 days and they approved it despite knowing this fact. Is it not unfair if they scrap the desicion despite nothing new showing up at CZ time?? Can they legally overturn their own desicions without new facts being uncovered??

It is unfair or not, that is what CIS was doing in cases such as Sony's -- bring up F1 related issues at the time of CZ process rather than that of GC.

 

[GeeC]

Why consult a lawyer, USCIS has clearly given guidance that GC is for future job and as long as I-140 is valid its OK. The I-140 is valid as long as the employer does not cancel it, is this position valid??

Indeed GC is for the future employment. But both employee and the employer should have the intent to work together for a supposedly infinite period of time once the GC is approved.

Now if you never worked for the sponsoring employer, then your argument holds, but if you work for the current employer at the time of applying I-140 and leave soon after, it will be difficult to prove the intent that there is a need for that employee as a permanent basis in the future (and not at the moment!?). This is where it gets tricky.

I guess to find a common ground -- to avoid employees being penalized for CIS delays (GC process that is supposed to take 6 months, ended up taking 6 years), AC21 was passed.

Question 10. Should service centers or district offices deny portability cases on the sole basis that the alien has left his or her employment with the I-140 petitioner prior to the I-485 application pending for 180 days?
Answer: No. The basis for adjustment is not actual (current) employment but prospective employment. Since there is no requirement that the alien have ever been employed by the petitioner while the I-140 and/or I-485 was pending, the fact that an alien left the I-140 petitioner before the I-485 has been pending 180 days will not necessarily render the alien ineligible to port. However, in all cases an offer of employment must have been bona fide. This means that, as of the time the I-140 was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate

I am not sure where this excerpt is taken from. Is it a CIS directive?

If the current empoyment does not matter at all since GC is for future employment then what is the need for the AC21 in the first place -- any one could leave the employer any time. As I said this argument (that GC is for future employment) holds if you never worked for the sponsoring employer -- at least it helps to demonstrate the GC intent better.

Having said all this, I, too hope that the person gets CZ without any issues.

 

[hipka]

Indeed GC is for the future employment. But both employee and the employer should have the intent to work together for a supposedly infinite period of time once the GC is approved.

Now if you never worked for the sponsoring employer, then your argument holds, but if you work for the current employer at the time of applying I-140 and leave soon after, it will be difficult to prove the intent that there is a need for that employee as a permanent basis in the future (and not at the moment!?). This is where it gets tricky.

I guess to find a common ground -- to avoid employees being penalized for CIS delays (GC process that is supposed to take 6 months, ended up taking 6 years), AC21 was passed.
I am not sure where this excerpt is taken from. Is it a CIS directive?

If the current empoyment does not matter at all since GC is for future employment then what is the need for the AC21 in the first place -- any one could leave the employer any time. As I said this argument (that GC is for future employment) holds if you never worked for the sponsoring employer -- at least it helps to demonstrate the GC intent better.

Having said all this, I, too hope that the person gets CZ without any issues.

If I don't work for sponsoring employer it is unlikely that they will sponsor I-140. It is also very unlikely that USCIS will believe it even if they do. Also the most likely reason a person leaves the employer is because of a layoff. In this case the company can argue its a temporary layoff and not revoke his I-140.

Yes ,that excerpt is from a CIS directive. They are singing this tune now, what if they change their mind in 5 years?? Can we argue in court that we were misled by this directive??

You are right people can leave their employer, however the 140 must be approved the employer must agree to hire him if the GC gets approved within 180 days and also not revoke his I-140. Also if the 485 is approved within 180 days he is screwed.