H-1B Holder laid off just after I-485 filed

Y

yuLC

Registered Users (C)
I am working in H-1B status and I-485 was filed a couple of days ago, and I was notified my employment will be terminated in a month. I know GC is for a future employment and even if I lose a job now, I am legal to stay in the US based on the pending I-485 and my H-1B can still be transferred to another company also.

My question is how I can prove my I-485 is pending, since a receipt notice for my I-485 may be issued very late, probably a couple of month later based on what USCIS said. So I feel like I will go into a trouble when I need to tranfer my H-1B after I am laid off due to missing the I-485 receipt notice.

I appreciate any answer. It helps me a lot. Thank you in advance.
 
Thank you for your answer.

TheRealCanadian said:
You don't need the I-485 receipt to transfer your H-1B.
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Then, what is the proof to show that I am in a legal status to stay in the US. I am talking about a case that my employment has already been terminated in this time, which means my current employer has already sent a termination notice for my employment to USCIS or my H-1B for my current employer has already expired. So I would be only in AOS in this case.
 
yuLC said:
Thank you for your answer.



Then, what is the proof to show that I am in a legal status to stay in the US. I am talking about a case that my employment has already been terminated in this time, which means my current employer has already sent a termination notice for my employment to USCIS or my H-1B for my current employer has already expired. So I would be only in AOS in this case.
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are you sure that your employer sent letter to USCIS to revoke your H1 petition? if they have not sent letter to USCIS then you can file H1 transfer and Transfer petition must reach USCIS before the employer send letter to USCIS( FYI many employers dont send letter to USCIS to revoke the H1 petitions)
 
ginnu said:
are you sure that your employer sent letter to USCIS to revoke your H1 petition? if they have not sent letter to USCIS then you can file H1 transfer and Transfer petition must reach USCIS before the employer send letter to USCIS( FYI many employers dont send letter to USCIS to revoke the H1 petitions)
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Sorry, I may put you in confusion. I was talking about future posibilities. I am still in employment and will be laid off in a month. Actually, 4 years ago, my previous company went to bankruptcy, but my H-1B could be transferred to my current company after that, so I know it works.

I am not sure my current employer will send the termination notice (I will find out this later, but I can not ask it to HR right now), but my H-1B expires at the end of the next month, so if I can not find a job until then, I have to think about this ( actaully, 10 days grace period might be applied for this though).
 
Transfer to H-1B from other than H-1B status

It might be any confusion in this matter, but it looks like previous H-1B holders can still be transferred to a new employer in certain conditions. I am in the 7th year H-1B (holding an valid approved I-140 and LC with 365 days+ age) , and my H-1B can be transferred to any company as far as my I-140 is valid. Please see the following memorandum issued by USCIS, and my question was made based on it.

http://www.uscis.gov/files/pressrelease/PeriodsofAdm120506.pdf

B. Periods of Stay in H-1B Status Beyond the Six Year Maximum
In sections 106 and 104(c) of AC21, Congress provided exemptions to the six-year maximum period of stay rules for certain H-1B aliens who were being sponsored by employers for permanent residence and were subject to lengthy processing delays. Though both provisions of AC21 use the term “extension of stay,” eligibility for the exemptions is not restricted solely to requests for extensions of stay while in the United States. Aliens who are eligible for the 7th year extension may be granted an extension of stay regardless of whether they are currently in the United States or abroad and regardless of whether they currently hold H-1B status. Further, in examining eligibility for the 7th year extension, USCIS will focus on whether the alien is eligible for an additional period of admission in H-1B status, rather than whether the alien is currently in H-1B status that is about to expire and seeking an extension of that status in the United States pursuant to 8 CFR 214.1(c).​
So anybody knows a proof of a pending I-485, but with the reciept notice not yet issued?
 
yuLC said:
Sorry, I may put you in confusion. I was talking about future posibilities. I am still in employment and will be laid off in a month.
---------------------------------------then find new employer ASAP and let them file H1 transfer
Actually, 4 years ago, my previous company went to bankruptcy, but my H-1B could be transferred to my current company after that, so I know it works.

I am not sure my current employer will send the termination notice (I will find out this later, but I can not ask it to HR right now),
--------------dont ask HR or employer if they are going to send letter to USCIS
but my H-1B expires at the end of the next month,
--------------H1 transfer must reach USCIS before your I-94 gets expired
so if I can not find a job until then, I have to think about this ( actaully, 10 days grace period might be applied for this though).
----dont think of 10 day grace period , find employer ASAP
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ginnu,

Thank you for your answer, but what you answered were all I have already known. I am asking about things after my current H-1B expired. I believe my H-1B is able to be tranferred to another employer when I am not in H-1B status as far as my I-485 is pending, accoding to the memorandum from USCIS I showed before.

ginnu said:
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Right now, applying for 485 offers you the 485/EAD status.....but that is contingent upon your employer not revoking your I-140....

If your employer revokes your I-140 approval before the end of 6 months from 485 Receipt Date...485 could get denied...you would lose your 485 status....Hence, it might be safer now for you to continue doing an H1B tranfer ....and maintaining your H1B status.....
Since you are already in 6 year+ period.....you may want to even keep another I-140 approval or LC older than 5 year H1b period, as standy....that can be used for extensions on your H1B

If your employer does not revoke your I-140 within the 6 months from 485 RD...you may be fine under AC21 regulations....making your I-140 portable and 485 remain valid - as long as you keep working in a same/similar job...

Proof of 485 Receipt.....yep, the drawback is the copy of 485 Receipt goes to your lawyer......and if your lawyer is helpful, even after layoff....then you can collect the 485 Receipt from him...

If not, I can only think of the the other possibility - is the Back of the USCIS check for 485 - usually they stamp the 485 Receipt Number on the back of the check of filing fee, that you sent to USCIS.....I am not sure...but I am guessing that could be considered as proof of filing 485.......

Bottomline, if your employer revokes your I-140 then you are in big trouble...the basis for your H1B extensions - the labor and I-140 would cease to exist......
Most employers do not revoke I-140...except few small consulting firms...for their own greed....
If your employer does not revoke I-140...you may be fine under AC21 regulations...
 
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yuLC said:
Then, what is the proof to show that I am in a legal status to stay in the US.
Click to expand...

The problem is that an I-485 receipt is insufficient for this. In order for you to transfer the H-1 to a new employer without leaving the US, you need to be in valid non-immigrant status, and a pending I-485 doesn't prove this. Your worst case is that you'd need to leave the US and re-enter, but at least you're employed and have the H-1.
 
You could file for EAD (you can do this yourself). IF your EAD gets approved soon enough, then you can work under the EAD (and work with any employer). BCIS may investigate when time for 485 approvals comes up.
 
Thank you for your advice.

I do not think my employer revoke my I-140, since there is no benefit anyway for them, although I need to make sure if they really do not do it.

My another concern relating to this is a case that my company cancels the check for my I-485. Since my I-485 application will be untouched for considerably long period (2 or 3 months or more), my company will have a long time able to cancel the check after I get laid off. My company's attorney filed my case, so this happens though.

By the way, I found an almost same job as I am currently doing, so it is good to me. My next target is to get an valid I-485 receipt and finger printing. And then, after 6 months passed, send an AC21 letter for me.

banta4gc said:
Right now, applying for 485 offers you the 485/EAD status.....but that is contingent upon your employer not revoking your I-140....

If your employer revokes your I-140 approval before the end of 6 months from 485 Receipt Date...485 could get denied...you would lose your 485 status....Hence, it might be safer now for you to continue doing an H1B tranfer ....and maintaining your H1B status.....
Since you are already in 6 year+ period.....you may want to even keep another I-140 approval or LC older than 5 year H1b period, as standy....that can be used for extensions on your H1B

If your employer does not revoke your I-140 within the 6 months from 485 RD...you may be fine under AC21 regulations....making your I-140 portable and 485 remain valid - as long as you keep working in a same/similar job...

Proof of 485 Receipt.....yep, the drawback is the copy of 485 Receipt goes to your lawyer......and if your lawyer is helpful, even after layoff....then you can collect the 485 Receipt from him...

If not, I can only think of the the other possibility - is the Back of the USCIS check for 485 - usually they stamp the 485 Receipt Number on the back of the check of filing fee, that you sent to USCIS.....I am not sure...but I am guessing that could be considered as proof of filing 485.......

Bottomline, if your employer revokes your I-140 then you are in big trouble...the basis for your H1B extensions - the labor and I-140 would cease to exist......
Most employers do not revoke I-140...except few small consulting firms...for their own greed....
If your employer does not revoke I-140...you may be fine under AC21 regulations...
Click to expand...
 
Thank you for your answer.

I think you are right. I previously saw an analysis for the memoranum in a immigration lawyer's site and it said that H-1B transfer can be done from AOS if the applicant meets the condition of H-1B extension beyond 6 year limit. I tried to find the page, but it can not be done. Instead, I found the following page to prove your saying is right.

http://www.immigration-law.com/CIRA Q&A.html

And in my understanding, even if the change of status from AOS(parolee) to H-1B fails when the I-129 is approved, my status is still in a parolee status, so no need to leave the US just to keep a legal status. But once I want to work in H-1B, I need to leave the US and get an H-1B stamp in my passport, and reenter the US. You think is this correct?

TheRealCanadian said:
The problem is that an I-485 receipt is insufficient for this. In order for you to transfer the H-1 to a new employer without leaving the US, you need to be in valid non-immigrant status, and a pending I-485 doesn't prove this. Your worst case is that you'd need to leave the US and re-enter, but at least you're employed and have the H-1.
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Seeking Advice

I am in somewhat similar situation. My company (that sponsored my Permanent residency process) has "leased" some of us to different company. Now this other company where I am working was acquired recently and the acquiring company is interested in hiring me direct.
However this has put me in a pickle because I got my labor approved recently and my I-140 is still pending. Also this transaction does not qualify for a "successor-in-interest" because my company is not involved in this acquisition.
My H-1B is up for 9th year renewal in Jan 2008. My lawyer has suggested that we "port" the H-1B to this acquiring company now and let the I-140 and I-485 continue with my current employer. Later when the AC-21 portability becomes available we transfer the process over to the acquiring company.
Do you guys think this is a sound strategy? Are there any good alternatives? Thanks.
 
swmichigan said:
I am in somewhat similar situation. My company (that sponsored my Permanent residency process) has "leased" some of us to different company. Now this other company where I am working was acquired recently and the acquiring company is interested in hiring me direct.
However this has put me in a pickle because I got my labor approved recently and my I-140 is still pending. Also this transaction does not qualify for a "successor-in-interest" because my company is not involved in this acquisition.
My H-1B is up for 9th year renewal in Jan 2008.
My lawyer has suggested that we "port" the H-1B to this acquiring company now and let the I-140 and I-485 continue with my current employer. Later when the AC-21 portability becomes available we transfer the process over to the acquiring company.
--------------------------------lawyer is correct
Do you guys think this is a sound strategy? Are there any good alternatives? Thanks.
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Thanks Ginnu. Unfortunately I learned today that my current company is threatening to revoke my pending I-140 if I joined the acquiring company. The fun never ends!!
 
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