Consolidated NSC I-485 Tracker

[Oct282003]

Not sure if this is the right forum for this question, but let me ask.

Here is the info:

I-140 APPROVED-APRIL,2007(have approval notice)
H1-b approved for 3 yrs(from May2007-May2010), based on I140 approval and PD not current.
i-485/EAD/AP APPLIED- JULY2,2007(have receipt notice)
EAD APPROVED-OCT10,2007(have card)

Got fired from job-oct20,2007.

Questions:
1. Can H1b be transferred to another company based on this i140 approval??
2. Can work for other employer on EAD, thinking/expecting the prev employer will not cancel the 140 approval till Jan10,2008(it will be 180 then), and then file AC21??

if not what are the options??

Thanks

Srini,

I don't dispute with Nelsona's agument as well as BingBang's line of thinking. Here is grey area which you can put forward for your case.
1. GC being for future employment you can use current petition for your use, but don't work for any body till you complete per calender 180 days from your received date on I 485. Basically start your emplyoment after this date.
2. When you submit your documents for AC 21 there is nothing in that requires you to submit as proof for your current terminated employment for the first 180 days like pay stubs or letter from your employer.
3. I hope you got some severance package from current employer at least couple of weeks of pay, Did you have any accrued PTOs which they usually pay it off at the termination? If yes this should help you too.
4. Based on these lines you can use the EAD to gain employment and utilize the current petition too.

I'm not an attorney nor an expert hence please don't treat this opinion as it is. In these issues it is advisable to seek either Rajeev's or Murthy's counsel and opinion to seek your next course of action. They are the best resources for you!!

Finally this did happen to me just before I were to complete my 6 years in my full time employment. Then I worked for a start up as a consultant kicking off a new GC process and also allowed my start up employer to start a PERM based petition with a hope that I can tag my consultant employer's GC PD. When PERM and I140 were approved I developed cold feet looking at Start up's capital and performance in market in terms of competitor's chipsets, their current market share, eventually I backed off from PERM and stuck to consulting even leaving the Start up employer. Don't loose your heart and think keenly even in these hours of adversity and I'm sure immigration attorneys would show you the way as long as you are ready to spend money for their services.

Good luck buddy.

 

[nelsona]

Your 485 and consequently EAD is invalid now. So do not even think of AC-21.

Get your H1b transferred. This is a grey area so you have more chances of getting transferred.

After this you have to start all over again PERM, I-140 and then 485. You can take claim the original PD even if your ex employer withdraws 140.

The I-485 is only invalid once USCIS says it is. In the meantime the EAD is perfectly valid as well.

It may not be for long, but since current employment is NOT a criteria for I-485 validity, I don't see why bigbang would think merely losing your job makes your I-485 invalid. It does not.

The cancelling of the I-140 however WOULD soon make your I-485 invalid. So, if your old employer waits until January before pulling your I-140, then you are quite free at that point to use portability of I-140, and are in the position right now to use EAD.

You do need to be finding a new sponsor though, if your old one is not going to keep sponsoring you after january.

Remember: your employer and your GC sponsor are 2 separate things. Right now, you have only lost your employer. Only by his pulling your I-140 can you lose your sponsor. And if he doesn't pull it before january, it doesn't matter what he does afterwards.

 

[bigbang2001]

nelsona : You brought up a valid point. For years I have lived under H1b instant kill and hence the thinking.

However I noticed csrini1 has H1b cover also. Now if he has lost job then employer is legally bound to inform USCIS to terminate H1.

Now USCIS can connect the dots to find that the person has no job. If not immediately but at a later date. With an approved 140 there is a stronger case but when 180 days are not crossed then 485 is denied from the day the job is terminated. I know of cases where lay off happened 1 month before 180 days. However in that case USICIS took a benevolent position and approved. I also had compnay mates who were laid off 2 months before this line. The HR department then helped by giving them 2 months partial pay trickling from their severance.

csrini; Your best bet is to ask your old employer to give you 3-4 months of Leave of Absence. This takes you past the 180 days line. You can not file AC-21 before that.

Good Luck.

The I-485 is only invalid once USCIS says it is. In the meantime the EAD is perfectly valid as well.

It may not be for long, but since current employment is NOT a criteria for I-485 validity, I don't see why bigbang would think merely losing your job makes your I-485 invalid. It does not.

The cancelling of the I-140 however WOULD soon make your I-485 invalid. So, if your old employer waits until January before pulling your I-140, then you are quite free at that point to use portability of I-140, and are in the position right now to use EAD.

You do need to be finding a new sponsor though, if your old one is not going to keep sponsoring you after january.

Remember: your employer and your GC sponsor are 2 separate things. Right now, you have only lost your employer. Only by his pulling your I-140 can you lose your sponsor. And if he doesn't pull it before january, it doesn't matter what he does afterwards.

 

[igor_ch]

A leave with small amounts being paid from severance package is probably the best.

However, I think csrini1 should talk to a good lawyer, in addition to listening to a somewhat knowledgeable group of engineers and others over here.

Speaking about company notifying about H1B job termination... where did you hear about that? As far as I heard (back in 2003), this was not required.

nelsona : You brought up a valid point. For years I have lived under H1b instant kill and hence the thinking.

However I noticed csrini1 has H1b cover also. Now if he has lost job then employer is legally bound to inform USCIS to terminate H1.

Now USCIS can connect the dots to find that the person has no job. If not immediately but at a later date. With an approved 140 there is a stronger case but when 180 days are not crossed then 485 is denied from the day the job is terminated. I know of cases where lay off happened 1 month before 180 days. However in that case USICIS took a benevolent position and approved. I also had compnay mates who were laid off 2 months before this line. The HR department then helped by giving them 2 months partial pay trickling from their severance.

csrini; Your best bet is to ask your old employer to give you 3-4 months of Leave of Absence. This takes you past the 180 days line. You can not file AC-21 before that.

Good Luck.

 

[gamamvp]

called NSC and confirmed for the second time I have cleared name check. It has been 2 weeks and 2 days since I submitted reply to RFE - EVL and marraige license. How long do u think before I-485 is adjudicated. I was told by IO case is still pending. Basically waiting for adjudicator to work on my case. I am EB2 and based on visa bulletin my category is current.
PD 04/16/2002
retrogressed : N
I-140 RD 10-11-2006
I-140 AD 07-18-2007
I-485 RD 05-25-2007
FP ND 06-12-2007
FP AP 06-27-2007
EAD RD 05-25-2007
EAD AD 08-18-2007
I-485 RFE 09-19-2007
I-485 LUD 10/17/2007
I-485 PENDING (2 weeks and 4 days since 10-17-2007)
PENDING for 163 days since RD of 05-25-2007

 

[gc_mania]

Not sure if this is the right forum for this question, but let me ask.

Here is the info:

I-140 APPROVED-APRIL,2007(have approval notice)
H1-b approved for 3 yrs(from May2007-May2010), based on I140 approval and PD not current.
i-485/EAD/AP APPLIED- JULY2,2007(have receipt notice)
EAD APPROVED-OCT10,2007(have card)

Got fired from job-oct20,2007.

Questions:
1. Can H1b be transferred to another company based on this i140 approval??
2. Can work for other employer on EAD, thinking/expecting the prev employer will not cancel the 140 approval till Jan10,2008(it will be 180 then), and then file AC21??

if not what are the options??

Thanks

As many have opined, you need to get in touch with a good attorney.
What i have understood is that once one is having a pending I-485 one doesn't automatically go out of status as a result of job termination ( as opposed to H1B ). Now if the I-485 is not pending greater than 180 days, i don't know what will be the case with AC-21 . Also the USCIS should not approve the I-485 before transferring to a new employer ( else you will get a fraudulent GC ) . I have 'heard' that employer should notify USCIS ( within a month or so ) of the job termination.

 

[bigbang2001]

igor_ch : what happened to your name check ?

As for H1b, I am sure about it. If employee has been terminated , employer has to inform USCIS that they are no longer paying the employee and H1b is not required. The rule existed way back in 2001. I had got the pink slip and was told by HR person that they will wait 2 weeks time before informing USCIS about cancellation of H1 as required by law. The 2 weeks time was only due to the 2 weeks severance and used up as service time to delay informing USCIS.

For csrini1, talk to a lawyer after gathering inputs from various sources. But your best bet is to somehow reach that 180 days line and keep old employer happy so he does not withdraw 140. A waihdrawal after 180 days is fine but causes needless NOID from USCIS.

A leave with small amounts being paid from severance package is probably the best.

However, I think csrini1 should talk to a good lawyer, in addition to listening to a somewhat knowledgeable group of engineers and others over here.

Speaking about company notifying about H1B job termination... where did you hear about that? As far as I heard (back in 2003), this was not required.

 

[csrini1]

igor_ch : what happened to your name check ?

As for H1b, I am sure about it. If employee has been terminated , employer has to inform USCIS that they are no longer paying the employee and H1b is not required. The rule existed way back in 2001. I had got the pink slip and was told by HR person that they will wait 2 weeks time before informing USCIS about cancellation of H1 as required by law. The 2 weeks time was only due to the 2 weeks severance and used up as service time to delay informing USCIS.

For csrini1, talk to a lawyer after gathering inputs from various sources. But your best bet is to somehow reach that 180 days line and keep old employer happy so he does not withdraw 140. A waihdrawal after 180 days is fine but causes needless NOID from USCIS.

wow, thanks a lot for all your suggestions. really appreciate it. Only after reading all these replies, i realised that i did not mention, that this is for my friend, and not me. My details are in my signature.
I told my friend to do whatever it takes to be on payroll till the 180 days, but i will also forward all these resposes to him.
Really appreciate it guys...

 

[csrini1]

Hi csrini1

Could you please kindly let me know what kind of evidence did you provide for the RFE of Mother's name not in Birth certificate?

Regards

I got a new birth certificate with my mothers and fathers name(full name) on it.
Also submitted additional affidavits from my uncles and neighbors.

 

[coolmaro]

Got mine approved. I wish you all infinite patience and good luck.

 

[venram]

Got mine approved. I wish you all infinite patience and good luck.

WOW !!!!!!!! Congratulations !!!!!

Your case has the best-est turnaround time in the recent times... you should be having mole all over your body... great luck, buddy !!!!!!!!!

 

[gc_mania]

WOW !!!!!!!! Congratulations !!!!!

Your case has the best-est turnaround time in the recent times... you should be having mole all over your body... great luck, buddy !!!!!!!!!

I think june/july 2007 filers are put into a better name check turn around system ( like PERM for labor certification ) while the old timers are in a different name check system ( as with Phily BEC labor cert )

 

[igor_ch]

bigbang, you're right. I found this note in the article - "The employer has an obligation to notify the Immigration and Naturalization Service ("INS") of the termination":

http://www.gibbonslaw.com/news_publ...action=display_publication&publication_id=681

However, the article mentions that "There is no express penalty for failure to make 'immediate' notification".

csrini1, you may want to forward that article to your friend.

Speaking about my name check - I've sent signed papers to my Congressman (Mike Honda) two weeks ago. They quickly replied with a letter stating that they will only do an enquiry and that inquiry usually takes about 90 days, and so I now wait for their response. NC is "only" pending for 17 months, so I should have plenty of time to collect more papers (inquiry through First Lady, email to FBI, direct expedite request, etc) before namecheck will be ~2yr old and it will be a good time to file WOM.

igor_ch : what happened to your name check ?

As for H1b, I am sure about it. If employee has been terminated , employer has to inform USCIS that they are no longer paying the employee and H1b is not required. The rule existed way back in 2001. I had got the pink slip and was told by HR person that they will wait 2 weeks time before informing USCIS about cancellation of H1 as required by law. The 2 weeks time was only due to the 2 weeks severance and used up as service time to delay informing USCIS.

For csrini1, talk to a lawyer after gathering inputs from various sources. But your best bet is to somehow reach that 180 days line and keep old employer happy so he does not withdraw 140. A waihdrawal after 180 days is fine but causes needless NOID from USCIS.

 

[bigbang2001]

Write to as many sources and quickly enough. I escaped after 15 months. I do not think it was FL nor I think it was Senator or Coongresswoman. It was probably a combination coming together at the same time and probably my file just needed a bit of dusting. BTW I am from India so it must have added some extra time for finding the file.

bigbang, you're right. I found this note in the article - "The employer has an obligation to notify the Immigration and Naturalization Service ("INS") of the termination":

http://www.gibbonslaw.com/news_publ...action=display_publication&publication_id=681

However, the article mentions that "There is no express penalty for failure to make 'immediate' notification".

csrini1, you may want to forward that article to your friend.

Speaking about my name check - I've sent signed papers to my Congressman (Mike Honda) two weeks ago. They quickly replied with a letter stating that they will only do an enquiry and that inquiry usually takes about 90 days, and so I now wait for their response. NC is "only" pending for 17 months, so I should have plenty of time to collect more papers (inquiry through First Lady, email to FBI, direct expedite request, etc) before namecheck will be ~2yr old and it will be a good time to file WOM.

 

[billofempire]

I-131 Approved

Time Line EB3

I-485,I-765 and 131 Sent to TSC August 7TH,2007
I-140 AD 08/12/07
All RD 8/8/07
All ND 10/01/07
EAD Approved.
Finger Print Notice Date 10/09/07
Finger Printing on 11/06/07

I-131 Approved on November ,2ND,2007

 

[nyoct2001]

Was just wondering about AP and EAD renewal. Ive just received the first ones. Ive heard the earliet one can reapply is 4 months before expiry. Is it possible to travel on the current AP after having applied for the new one or is a person unable to travel in that 4 months?
What are the chances that my GC will be approved in the next year barring a lengthy name check of course. My PD is Oct. 2001. Details in profile.
I have had no LUD's on my I485 since 8/03/07.

 

[csrini1]

Was just wondering about AP and EAD renewal. Ive just received the first ones. Ive heard the earliet one can reapply is 4 months before expiry. Is it possible to travel on the current AP after having applied for the new one or is a person unable to travel in that 4 months?
What are the chances that my GC will be approved in the next year barring a lengthy name check of course. My PD is Oct. 2001. Details in profile.
I have had no LUD's on my I485 since 8/03/07.

you can apply for an extension, 6 months before expiry. Other questions i am not 100% sure, so don't want to comment.

 

[nelsona]

Your AP is good for entry until the last day it is valid, regardless of any other AP or EAD applications you may have made.

 

[nelsona]

nelsona : You brought up a valid point. For years I have lived under H1b instant kill and hence the thinking.

However I noticed csrini1 has H1b cover also. Now if he has lost job then employer is legally bound to inform USCIS to terminate H1.

Now USCIS can connect the dots to find that the person has no job. If not immediately but at a later date. With an approved 140 there is a stronger case but when 180 days are not crossed then 485 is denied from the day the job is terminated. I know of cases where lay off happened 1 month before 180 days. However in that case USICIS took a benevolent position and approved. I also had compnay mates who were laid off 2 months before this line. The HR department then helped by giving them 2 months partial pay trickling from their severance.

csrini; Your best bet is to ask your old employer to give you 3-4 months of Leave of Absence. This takes you past the 180 days line. You can not file AC-21 before that.

Good Luck.

As I said, there is absolutely no need for current employment in the I-140 process, neither before or after approval. The only requirement for employment by the sponsor is at the moment of I-485 approval, or at the RFE stage just before approval.

So, while H1 sponsorship has ended for that employer, I-140 sponsorship has not. If the employer does not act before january, the I-140 becomes portable.

As I also said, it is not the best situation, and the poster should be finding a new sponsor, filing PERM, and getting a new I-140 and I-485 submitted as quickly as possible.
If in January the new employer wishes to take over sponsorship based on the old case, they can at that point if they wish.

 

[nelsona]

igor_ch : what happened to your name check ?

As for H1b, I am sure about it. If employee has been terminated , employer has to inform USCIS that they are no longer paying the employee and H1b is not required. The rule existed way back in 2001. I had got the pink slip and was told by HR person that they will wait 2 weeks time before informing USCIS about cancellation of H1 as required by law. The 2 weeks time was only due to the 2 weeks severance and used up as service time to delay informing USCIS.

For csrini1, talk to a lawyer after gathering inputs from various sources. But your best bet is to somehow reach that 180 days line and keep old employer happy so he does not withdraw 140. A waihdrawal after 180 days is fine but causes needless NOID from USCIS.

again, although the H1 is dead, AC21 allows for h1 poratbility regardless of the status you arfe currently in. Since you are in AOS status, AC21 allows your next employewr (if you decide not to use your valid EAD) to file I-129 for you and you can work immediately, with any remaining clock that you have.