I-140 approved, AOS not started, job in jeopardy

U

usimmgr

Registered Users (C)
I am hoping you could advise me on what options I have given my current situation, which I am outlining below:

I am employed by a multinational company going through a rough time in this economy. The company had started my green card process in March 2001. Labor processing was done using RIR, & my application proceeded fairly smoothly, so that the I-140 application got approved in Dec 2002. I am considering marriage in the near term, so my company's immigration advisors suggested that I not begin AOS processing till that is settled, in the interest of keeping my application simple & avoiding delays due to lost paperwork. At that point it did not look like the company would have layoffs in the 3-6 month time frame, so I decided to wait a couple of months before applying.

Recently, the company changed direction, & decided to reduce its workforce, & although we do not know yet who will be impacted, my location faces heavy cuts, & I fear the worst. I would very much like to start the AOS process at this point, but my company has put a hold on immigration applications till decisions are taken on the job cuts. I want to figure out what the best option for me is, given that I might be asked to leave the company in a few months' time.

Can I (legally) ask them to apply for my AOS immediately, knowing that my company is looking to lay off people in the next 3-6 months, & I might be one of the affected people?
Can I insist that my company's immigration department apply for my AOS (I have spoken with my supervisor, who is fully in favor of continuing the process, but is it sufficient to tell that to the company's immigration department)?
Is the I-485 application only valid if applied by the company, or can I as an individual whose I-140 is approved, legally apply for AOS on my own? If so, do I need approval from my company to apply for I-485, since they still have controll over I-140 & prior approvals?

Your advice would be very helpful to me in figuring out if I have any feasible options with my current green card application/status, or if I need to accept the fact that I would have to start the GC process again from scratch in the event that I lose my current job.

Thanks!
-usimmgr
 
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Apply I-485 immediately. For your future wife, you can file I-485 as a derivative case at any time before your GC approval (at the current rate, it is taking more than 16 months). No sense in delaying to apply for I-485.
 
Originally posted by usimmgr
I am hoping you could advise me on what options I have given my current situation, which I am outlining below:

I am employed by a multinational company going through a rough time in this economy. The company had started my green card process in March 2001. Labor processing was done using RIR, & my application proceeded fairly smoothly, so that the I-140 application got approved in Dec 2002. I am considering marriage in the near term, so my company's immigration advisors suggested that I not begin AOS processing till that is settled, in the interest of keeping my application simple & avoiding delays due to lost paperwork. At that point it did not look like the company would have layoffs in the 3-6 month time frame, so I decided to wait a couple of months before applying.

Last month, the company changed direction, & decided to reduce its workforce, & although we do not have the final word yet on who will be impacted, my location will get heavy cuts, & I fear the worst. I would very much like to start the AOS process at this point, but my company has put a hold on immigration applications
till decisions are taken on the job cuts. I want to figure out what the best option for me is, given that I might be asked to leave the company in a few months' time.

Can I (legally) apply for AOS, knowing that my company has intention to lay me off in the next 3-6 months?
Can I insist that my company's immigration department apply for my AOS (I have spoken with my supervising manager, & he is fully in favor of continuing the process, but is it sufficient to tell that to the company's immigration department)?
Is the I-485 application only valid if applied by the company, or can I as an individual whose I-140 is approved, legally apply for AOS on my own? If so, do I need approval from my company to apply for I-485, since they still have controll over I-140 & prior approvals?

Your advice would be very helpful to me in figuring out if I have any feasible options with my current green card application/status, or if I need to accept the fact that I would have to start the GC process again from scratch in the event that I lose my current job.

-SK
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To apply for I-485, (as part of the I-485 filing) you need a notarized letter from your employer that the position for which LC and I-140 was done is STILL available and is available INDEFINITELY. If your employer has decided to freeze all immigration applications, then it means that the employer is no longer able to or willing to certify that the job is still available. In that case you are out of luck.

If you apply for I-485 WITHOUT employer's letter and hope that BCIS will take more than 6 months to begin processing your application (and issue an RFE for employment letter) and also hope to use AC21 portability, you will be in trouble. Your original application would have been made in bad faith and it automatically gets rejected, regardless of AC21. This method was suggested elsewhere on this forum as a way to file 485 without current employer's commitment. This so called trick borders on immigration fraud.

Check with your employer exactly what his position is. If he is willing to commit to your employment and issue a letter, you are OK and then you can hope for the AC21 portability benefit. If not, you are out of luck and will have to start the process again.

This is my personal opinion only.
 
nkm-oct23

Thanks for your reply. Other than the costs associated with the application process, what might be the other reasons an employer would want to hold off on applying for AOS of an employee?

Legally, I would think it would be OK for the company to apply at this point, since no decision has been made yet on the layoffs; we only know that the company would be letting go of some employees.

Basically, I am trying to figure out whether there is legal problems if I request the company to proceed with the AOS application immediately before any decision is taken on the layoffs (or atleast give me a letter stating intent to keep me employed so that the application can be sent) - I am even ready to bear the costs of the application/attorney etc if need be, assuming that if it comes to that I can use AC21 down the line.

Anyone who has been through similar situation, or have any tips, please advise.
 
Re: nkm-oct23

Originally posted by usimmgr
Thanks for your reply. Other than the costs associated with the application process, what might be the other reasons an employer would want to hold off on applying for AOS of an employee?

--> Companies avoid filing 485 if they are not sure of your future as in principal, the "intent" to have u forever is not there.. Some use this as a face to avoid going thru the trouble/expenses as well..

Legally, I would think it would be OK for the company to apply at this point, since no decision has been made yet on the layoffs; we only know that the company would be letting go of some employees.

Basically, I am trying to figure out whether there is legal problems if I request the company to proceed with the AOS application immediately before any decision is taken on the layoffs (or atleast give me a letter stating intent to keep me employed so that the application can be sent) - I am even ready to bear the costs of the application/attorney etc if need be, assuming that if it comes to that I can use AC21 down the line.

Anyone who has been through similar situation, or have any tips, please advise.

--> Your best bets would be either to put pressure through your immediate boss to move forward or file yourself as suggested in lee man chan's chain of discussion (link: http://www.immigrationportal.com/showthread.php?s=&threadid=64687). Also make sure you have copies of your 140 approval and Job Title, Description, Salary, and Assigned DOL Code from LC - it would help u in future with EAD renewals/485/AC-21/etc..

GC is a very painful process bud, hope you get thru it one way or the other without needing to restart.. goodluck!

--ab
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