Hello all, I recently got my I140 approved (TSC) in NIW category and sent in I485 before retrogression. Being in NIW I can change jobs as long as they are in same field. My contract with current employer is ending soon and I got another offer, but it looks like there will be about a month's gap between employers when I will not be on the payroll with either of the employers. Can some body help me if this will affect my green card process (485) in any way. Any info will be useful. Thanks
Does gap between H1B affect GC
- Thread starter yeehaw!
- Start date
Call me Shrek
Registered Users (C)
Maybe not yet, but if those people have their way, it just might. http://www.hooyou.com/news/news121305new.htm
dyingforgc
Registered Users (C)
yeehaw! said:
Theoritically you are not allowed to have gap. You go out-of-status when you are not on payroll with any of the employers. when other user mentioned about 180 days gap, it will kick off 245(i) amendment. which says if your out-of-status period is less than 180 days, USCIS may forgive you. Try to work out something so that you don't have any gap between two employments.
TheRealCanadian
Volunteer Moderator
dyingforgc said:
No, no, no. Once the I-485 is filed he is automatically in status, even if he takes a year off to watch Oprah and eat Twinkies on the couch.
You see, I never understood how that can be the case. If you are free to do whetever you want and you are autmatically in status as soon as you file the I-485, there would be no point of the AC21 Act, for example. The entire purpose of the AC21 Act is to restrict and keep track of your employment while the I-485 is pending. Also, there would be no point for the USCIS to send out RFEs asking for current letters of employment. The point of that RFE is to check what you currently do. My understanding is that the I-485 primary applicant still has some restrictions to adhere to while the I-485 is pending while the spouse is completely free to work or not work (assuming spouse has EAD).
sillious_mk
Registered Users (C)
I sort of agree...
As long as it doesn't get passed 180 days!
I will "take a year off to watch (something other than) Oprah and eat Twinkies on the couch" after my I-485 is approaved
I would'nt take a chance otherwise.
bjorn said:
As long as it doesn't get passed 180 days!
I will "take a year off to watch (something other than) Oprah and eat Twinkies on the couch" after my I-485 is approaved
I would'nt take a chance otherwise.
dyingforgc
Registered Users (C)
TheRealCanadian said:
Ooops. I just re-read user's first post. I just read that his/her I-485 is already filed and pending. you right TheRealCanadian. May be I overlooked the post first time. My bad but yes, once your in AOS, you are legal to stay in the country. no worries.
dyingforgc
Registered Users (C)
bjorn said:
bjorn, you are misleading. The day you file your I-485. you are in AOS. and UNTIL AOS pending one is legal to stay in the country UNTIL IT'S APPROVED or DENIED. The day your I-485 is denied you are out-of-status. USCIS asks for employment proof to see if undelaying I-140 employer is the same or you have switched the job w/o notifying to USCIS. That's why it's advisable to invoke AC21 proactively.
TheRealCanadian
Volunteer Moderator
bjorn said:
This is 110% wrong. The I-485 portability provisions of AC21 are explicitly designed to allow you to work for an employer other than the I-140 sponsor once the I-485 has been approved. There have never been any restrictions on what you do before becoming a permanent resident; you do not need to work for anyone, including the sponsor. You do not even need to be physically present in the United States.
They are sending out an RFE based on the assumption that your current employer is also the one you intend to work for after your GC is approved. If this is not the case, then you will provide evidence of the current employment (if there is any) but also evidence of the job offer. Note the word offer - there is no requirement that the beneficiary ever be employed by the sponsor (or anyone else) at any point befor the GC is granted.
That's incorrect. Please review Section 245 of the INA (which covers the adjustment of status process) and tell me what section allows USCIS to deny your I-485 based on a gap between jobs once the I-485 has been filed.
fast_gc_seeker
Registered Users (C)
TheRealCanadian said:
Ummm...dosent AC-21 allows anybody to work for somebody else [other than 140 sponsor] after 180 days from RD of 485 provided 140 is approved and new job is same/similar?
where does it say AC-21 applies only once I-485 is approved?
TheRealCanadian
Volunteer Moderator
fast_gc_seeker said:
AC21 says no such thing. You can always work for whoever you want before the GC is approved. AC21 merely states that after the I-485 has been pending for more than 180 days, the LC and your I-140 remains valid so long as you are in a same or similar job, and therefore you can "port" the I-140 to a different sponsor or a different job.
Pre-AC21, an I-485 beneficiary who lost his or her I-140 sponsor through resignation or layoff could continue to work for any employer using an EAD or non-immigrant status that permitted employment, but if the LC job with the LC sponsor was not available then the I-485 would be denied. AC21 allows the I-485 to survive.
It doesn't - it refers to the position that the alien will fill upon I-485 approval.
anxious-one
Registered Users (C)
The real Canadian:
Question for you:
One of my former colleagues (from China) has an approved I140 (VSC, NIW approved in May/June 2005), while her I485 is retrogressed/pending. Her boss (biomedical research field) transferred to another univeristy and she left with him. She informed the USCIS, and the new place of work was supposed to take care of her H1-B transfer situation. In a nutshell, there was a screw-up that led to a 5 week gap, during which she worked (as she was in the middle of an important project), but was not paid. The University intends to compensate her (retroactive pay). Our concern is, since she was between H1-b visas at that time, is it legal for her to get paid for that period? Can this remotely influence her pending AOS?
Question for you:
One of my former colleagues (from China) has an approved I140 (VSC, NIW approved in May/June 2005), while her I485 is retrogressed/pending. Her boss (biomedical research field) transferred to another univeristy and she left with him. She informed the USCIS, and the new place of work was supposed to take care of her H1-B transfer situation. In a nutshell, there was a screw-up that led to a 5 week gap, during which she worked (as she was in the middle of an important project), but was not paid. The University intends to compensate her (retroactive pay). Our concern is, since she was between H1-b visas at that time, is it legal for her to get paid for that period? Can this remotely influence her pending AOS?
TheRealCanadian
Volunteer Moderator
anxious-one said:
If she had an EAD she'd be fine. If not, 245k will forgive illegal employment up to 180 days without penalty.
anxious-one
Registered Users (C)
TheRealCanadian said:
Thanks a lot. She was really worried...on one hand, forfeiting 5 wks of pay isnt appealing, but on the other hand, it's a small price to pay rather than screwing up her GC chances. She does not have EAD. Based on what you said, does she have to voluntarily file 245k since her i485 is already pending, or should she file only if something comes up?
TheRealCanadian
Volunteer Moderator
anxious-one said:
Not being paid wouldn't change the fact that she was working without authorization. It would be crazy to give up the pay when it wouldn't make a difference from an immigration standpoint.
You don't "file" 245k, any more than you "file" AC21. You just tell USCIS that you are eligible for 245k relief if they complain about the five weeks.