Employment History: N400: ThIs Is A TrICkY OnE

[PeterPany]

I know the AC21 issue has been discussed before when completing Employment sections, however I am not sure if anyone has been in this situation:

Mr A works for H1-B sponsor for 2.5 years
H1-B Sponsor has a mass layoff
The day of the layoff notice Mr A's I-485 is filed by H1-B sponsors lawyer (just a conicidence)
It leaves the post box and is headed for the Immigration Office
H1-B sponsors says "God likes you Mr A, you got lucky and we won't withdrawl the application"
Mr A is layed off 2 months later, officially
Approx 2 months later Mr A gets a EAD card through the post
Mr A does not get a job for another approx 4 months (lives of unemployment benefit whilst job hunting)
The 2nd job is similar to the first in pay and duties
Mr A gets his green card whilst working for the 2nd job

...Mr A continues in blissful happiness for 5 yrs and changes jobs a few times

Now:
* Mr A wants to apply for citizenship
* The intent at the time was to continue to work for the H1-B company
* They layed him and hundreds more off in a large Reduction in Force (RIF)
* Mr A is concerned with AC21 or out of status issues?
* Those months without EAD card - was the H1-B not valid and therefore Mr A was out of status in the USA?
* Are there any other issues that Mr A should be losing sleep over?


* Questions/Risks to N400/Suggestions gratefully appreciated.

 

[aabbcc11]

In this case A was with the company for just 2 months after applying for 485, so AC21 won't apply right? I would think he was out of status no matter that he got a 2nd job 4 months later.
AC21 was when you finished 6 months with the company that applied 485 and that kept the greencard application valid. In A's case the gc appl was invalid when he was laid off.

 

[koolvik7]

Indeed a Tricky one

Well this is a tough one and I do agree with aabbcc11 that 1) AC21 will not apply, and 2) that Mr. A was technically out of status (expired H1, no EAD for two months). But I do not agree that GC Application was Invalid because it is for a FUTURE employment and has no relation with the current working status of an applicant.

The true intent of AC21 was to give Employment flexibility to the GC applicants while their I-485 was pending since it was (and still is) taking too long for the USCIS to process the GC applications. It has made USCIS more sympathetic to the applicants (who changed jobs before or after GC petitions) and there are three recent N-400 approval cases on this forum that prove that. However, the fact that Mr. A used Unemployment Benefits might work against him during the time of the interview. Mr. A will have to prove his intent during the Citizenship interview and answer to following questions will help prepare him better.

• How does Mr. A plan to counter the Out of Status issue? does he have a plan?
• Does Mr. A have good documentation from GC Petitioner when he was laid off?
• Does Mr. A have an employment letter from the new company, similar job and title as on the GC petition?
• Has Mr. A been permanently employed since the GC petition?

 

[boatbod]

Did Mr A's I-485 take longer than 180 days to process? If so, he may still be able to apply AC21 because there is no requirement to work for the sponsoring company PRIOR to his I-485 being approved.

This is a tricky case with potentially serious ramifications if the IO takes a dislike to something in the case file. I recommend seeking professional advice before submitting an N-400 application.

Potentially this problem could be mitigated somewhat by delaying naturalization for some further number of years. That way there will be less emphasis on the past 5yr employment history, particularly around the time the GC was granted.

 

[N400Applier]

I know the AC21 issue has been discussed before when completing Employment sections, however I am not sure if anyone has been in this situation:

Mr A works for H1-B sponsor for 2.5 years
H1-B Sponsor has a mass layoff
The day of the layoff notice Mr A's I-485 is filed by H1-B sponsors lawyer (just a conicidence)
It leaves the post box and is headed for the Immigration Office
H1-B sponsors says "God likes you Mr A, you got lucky and we won't withdrawl the application"
Mr A is layed off 2 months later, officially
Approx 2 months later Mr A gets a EAD card through the post
Mr A does not get a job for another approx 4 months (lives of unemployment benefit whilst job hunting)
The 2nd job is similar to the first in pay and duties
Mr A gets his green card whilst working for the 2nd job

...Mr A continues in blissful happiness for 5 yrs and changes jobs a few times

Now:
* Mr A wants to apply for citizenship
* The intent at the time was to continue to work for the H1-B company
* They layed him and hundreds more off in a large Reduction in Force (RIF)
* Mr A is concerned with AC21 or out of status issues?
* Those months without EAD card - was the H1-B not valid and therefore Mr A was out of status in the USA?
* Are there any other issues that Mr A should be losing sleep over?


* Questions/Risks to N400/Suggestions gratefully appreciated.

Peter all the posts are correct. This is indeed tricky with out-of-status issues.

Do the following BEFORE applying for US Citizenship:

1. Contact a lawyer and explain the whole situation. Get their advice.
2. Instead of applying 5 years after GC maybe Mr. A can apply 6 years after GC. This does not solve the problem of out-of-status but since one has to list only the last 5 years of employment Mr. A does not have to mention his jobs prior to 5 years.