Employment Gap

H

HopefulGC2002

New Member
My husband who is applying GC for us had an employment gap of 2 months before he started the labor cert for GC. His H1B of the next company after her got laid-off was filed within 10 days from his last day from the first company. On the employment history for the I485 application, he wrote as:

   Company A: June 1997 - February 1998
   Company B: May 1998 - present.

Will this affect our GC approval? Thank you very much for your information on this.
 
I don\'t think it\'ll affect the GC processing or approval...

But after you apply for labor cert, he should be with his current employer (who\'s filing labor) ideally till you get the GC. With the new AC21 rule, he might be able to change his job after 6 months after filing I-485 (i.e the last stage of GC - after labor cert and I-140).

Wish you all the best!
 
He might have been out of status technically.

But if his labor certification had been applied before April 2001(I think) he may be able to use the provision 245(i). You should have your attorney check it out
 
super1966 is correct - I didn\'t think about that possibility...

Talk to your attorney about this issue. Also, did the new company transfer H1B or they filed a new H1B for him? If it\'s a transfer, it might be considered as a continuous H1 status and won\'t be a problem. Also it depends on whether the old company had informed INS about the lay-off or had cancelled his H1... Best to talk to your lawyer and decide what you want to write on the application for labor certification.
 
its a grey area

I was laid off by employer A on June 30 1998,
however, I had started my new H1 process for current employer B ~ June 10, 1998. My new H1 was approved on September1 1998.
Does that make me out of status for that period?
Accoring to my lawyer, it should not be a problem, also if it was a problem, it should have raised a flag during I-140 where we need to provide all the employment verification letter.
I don\'t know but I will check with my lawyer again, and post the response.
thx
 
No Title

A friend of mine is in the same situation. After he got laid off, was able to find a job and filed his H1B as TRANSFER for the next company. It was approved and his H1B with former company was not terminated and not reported to INS. His I140 has been approved (no RFE - went smoothly), his I485 application has been filed early this year and got his fingerprint notice. He has the same question if his GC approval will be affected; if INS-VSC will issue RFE, etc. Thank you for your information and if someone else has been in the same situation.
 
what do we need to do to use the provision 245(i)?

is the process different? separate forms?
Can a regular 485 be converted to use the provision 245(i)

Please advise.

Thanks
 
HopefulGC2002

INS is interested in documentation. So the officer will know from the documentation that he is working for company "B" from May 98. So now he looks at the approval of H1B for Company "B". It was approved in 98. Hence he is in status. secondly if the reciept date on it is within 10 days after the issued termination or last pay stub of company "A", no need to worry. Everything will go fine. In 1998, the rule is also that, one can start work for a company only after the approval. So I guess no breaks right? so no problem.
 
If you had applied for the new H-1 before being laid off then you maintain

status. The problem is if there is a break between losing yr job and appling for a new H-1. In any case this is a dicey question and it is best to contact a lawyer to clarify. Another point problems about being out of status do not arise at the 140 stage only at the 485 state. If you had been out of status for a short while you had to do CP for getting yr greencard. Under 245(i) you can apply for AOS
 
about 245(i).....

after you have filed 485....and some problem arises...like the case officer notices something ......

what would be needed to change the 485 to be under 245(i)....meaning would 485 need to be filed again.....as that would lead to new RD....

can someone please clarify......thanks.....
 
No Title

I have spoken to my husband\'s lawyer about this issue of employment gap prior to labor cert for GC started. He said that this is OKAY: the gap was less than 180 days. And, if there will be an RFE - ACT21 will be applied in this case (he doesn\'t expect an RFE regarding this). According to my lawyer, the worst case is just to pay $1,000.00 for ACT21. However, he said that this is not a critical matter/issue and the INS might not even look at this employment gap; since the H1B was filed within 10 days after last day with first company, the employee is NOT "out of status" in this case. The lawyer said that most RFE\'s nowadays is if the employee is still an employer of the petitioner (company sponsoring him) where INS wants a letter from company.
 
Lawyer\'s answer to employment gap

The immigration told me that en employment gap from previous company to the next company is NOT an issue to INS. According to him, the worst case is to pay $1,000 for AC21. Legally, he is NOT "out of status" since his H1B was filed within 10 days after las tday with Company A. The immigration lawyer doesn\'t expect the INS (IO) to consider this an issue for them and he doesn\'t think they will even notice this at all. In case, this will be a question, all the lawyer has to do is file and use AC21 which is applicable in this case since the gap is less than 180 days; pay $1,000.00 and his RD will be the same as when he filed I485. Again, he said this is NOT an issue; employee\'s status was legal at the 2 months he was not employed.

According to him (one of the best in the east coast) most of the RFE\'s nowadays is asking for employment letter to see if the employee istill working for the same company who sponsored the employee\'s GC. He said he had clients with the same situation and it didn\'t cause any problem and their approval went on smoothly and fast.
 
No Title

jwanggc is it AC21 or 245(i)?
Also what is this 180 day rule? I thought it was related to 485 and changing employer.

Also the person is out of status according to me. Yes he is not having illegal status since he/she did not work.

Can someone clarify whether 245(i) is also applicable for out of status?
Does one have to use 245(i) if he/she is out of status and not illegal status?

Thanks
 
245I

245i (not (AC21). As long as you were not out of status for more than 180 days, it will be okay.
 
245I - it\'s okay

245i (not AC21 - sorry). As long as the employment gap is less than 180 days, it\'s okay. Lawyer said they might not even look at this. If they look at this, all you have to do is pay $1,000.00 and you\'re RD/ND will be the same and GC will be approved. This is not a problem
 
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