I-485 <180 days, put on leave of absence. Please Help!

J

j27y1

Registered Users (C)
Hi Gurus,

I have a difficult situation and need your help:

- I have filed I-485 with the current employer on April 30, 2002, it will pass 180 days till Oct. 28, 2002 with the current employer.

- Due to company financial difficulties, our company put me on leave of absence from Sep. 16 till Oct. 28 so I can continue with GC and pass 180 days, however, there is no payment (no pay stub). In other works I am still employed without payment.

Question: does this cause any troubles or it is a valid arrangement? I got all the necessary letters from company (employment history, letter of future employment intention etc).

- I already got an offer from other company with similar job, should I join them after 180 days? with H-1B or EAD? what is the risk?

- my company lawyer is not coorporative, should I change lawyer? what is the risk of changing lawyer? and how to change it?

Any help from you guys are greatly appreciated!
 
Last edited by a moderator:
It is a risk many are enduring everyday.
Although it is not a valid arrangement for your current h1, there is no harm done to your GC by agreeing to this.


You can use either H1 transfer or EAD to join new employer. EAD is cheaper.

Some lawyers argue that it is enough if I485 remains pending unadjudicated for 180 days and so go ahead and change employer. Find such a lawyer and the new lawyer will file G28 to change lawyer.

of course final regulations are still awaited regarding the 180 day rule...
 
Thanks, Jaxen!

Jaxen,

Thanks a lot! I am reading your post all the time and it is very helpful. Here could you please further clarify your reply for me? appreciate it.

>It is a risk many are enduring everyday.
>Although it is not a valid arrangement for your current h1, there >is no harm done to your GC by agreeing to this.

why it is not a valid arangement for my H-1B since I am still employed? doesn't that mean my employer still sponsor my H-1B?

is there any potential problem for GC if requested by INS for pay stub? I got all the signed letters from CEO.

>You can use either H1 transfer or EAD to join new employer. >EAD is cheaper.

Thanks, I may want to use EAD.

>Some lawyers argue that it is enough if I485 remains pending >unadjudicated for 180 days and so go ahead and change >employer. Find such a lawyer and the new lawyer will file G28 to >change lawyer.

you mean change after 180 days? do I need to wait till October 29 to pass 180 days, then change the employer?

I will try to find a new lawyer. Is the lawyer represent me or company at this stage?

>of course final regulations are still awaited regarding the 180 >day rule...

Tons of thanks to you, Jaxen.
 
Change the employer on EAD or H1 transfer, new employer will prefer EAD becase he need not to spend on H1b tranfer .

FYI I know a Case of one of my friend he was working with company A and his I-140 was approved for that employer.

and I-485 was not filed by employer A or by my friend immidiatly
My friend left the Company A and joined Company B by H1B transfer.

Later he met an lawyer and lawyer asked him that why he has not filed I-1485 besed on past Employer I-140.

My friend asked the lawyer that he is not working with A how he can file I-1485.

Lawyer told him that can he provide him the I-140 copy or Filing reciept of I-140 with past employer A.

My friend managed to get the copy of I-140 that was approved for A.

My friend asked the lawyer that he has NO INTENT to work with employer A after GC and he told lawyer that it does not seem to be Legal to file I-485 when he is not working with company A.

Lawyer told him it is small risk of 108 days after filing I-485 for wich he should be ready, Lawyer told him how the INS know that YOU have INTENT or NO INTENT to work with A and Intent can change any time and GC is for future job.

Lawyer filed the I-485, my friend got the reciept of filingI-485 and EAD.

When 180 days were over after filing I-1485, lawyer sent a change of Intent letter to INS and new job offer letter from the employer B.

He did the fingerprints and 2 months back got his Interview notice, he went to Interview in high anxiety, but the INS officer asked only Employer letter and he gave the Employer B letter, showed the Pay Stubs from B and got the Passport stamped or got the GC.
in the above case the lawyer was very agressive and used AC21 after 180 days.

and employer A still does not know that my friend got GC based on I-140 that was approved for A.

Lawyer just wanted to pass 180 days and used AC21 and my friend took the risk and many have taken and are taking.

You should hire your own lawyer who is good ,do not care about if he charges $500 more than others and be ready to take the risk..
Good luck!!
 
Thanks, Avtaar!

according to you and Jaxen, I should wait passing 180 days to join the new company (pay stub from new company telling when I join), get the new employment letter from new company for inteview.

I keeps employed with current employer without pay (leave of absence) till passing 180 days, BUT I am still not clear about Jaxen's statement: this arrangement is "not valid for H-1B, no harm for GC". why is that not valid for H-1B? Jaxen or anybody please clarify for me! Thanks.
 
Can someone please tell me how long it takes to get I-140 approval and I-485 approval? I would appreciate.
 
I never said that you wait for 180 days after filing your I-485 to contunew with the employer who is not paying you, you can change any time but your I-1485 should not be approved before 180 days after filing it does not matter if you are with the same employer or with new employer.
AC21 clearly says your I-485 should not be approved before 180 days to use AC21, no mention of existing employer or future employer. my friend who got the Gc never worked with I-140 sponser, he filed his I-1485 through his employer not EX company employer or excompany lawyer.

If the Employer is not paying you why to continue for 180 days with him? you will not have any Pay stubs to show at the time of interview.
If you can find employer and he is ready to pay you swith the employer on EAD or by H1 Transfer, but with H1 transfer I see a problem because you do not have current Pay Stubs so how you will change on H1 transfer INS is now strick on this better join on on EAD

you can join new company any time and you will have the pay stubs from that company if Interview comes, the key in AC21 is that your I-485 should not be approved before 180 days.

according to me What Jaxen said is that with out Pay Stubs it will be problem for you to join new employer throgh H1b transfer as you do not have current pay stubs. you can join new emploer by EAD and OCtober 28 is not faraway to cross 180 days. you can jump to new employer any time now. Becase you will have Paystubs from new employer and after October 28 ask YOUR lawyer to send Employer Switching letter to INS to avoide any RFE and new G28 from lawyer that he represents you. If you change address let the INS know about this your new lawyer can take care of this
if possible try to get copy of I-485 filing reciept from the current employer if they do not give no problem your EAD has A# on it
 
Last edited by a moderator:
Avtaar, thanks for your detail explaninations. You have many helpful comments (e.g. lawyer,) but appears to me I have different understanding for some of them. I post it as questions.

1. AC21

It requires 180 days of I-485 pending Unadjudicated before you can switch employer. That means you have to work for the same employer for 180 days. It does not matter when you notify INS you have changed the employers (of course after 180 days). the actual date you worked for new employer matters. am I right?

For about one month (Sept. 16 to Oct. 28) I do not have pay check, but I got letter from CEO stating that I am still employed during this period and after, can that be a proof that I worked for the same employer passing 180 days? in other words, is pay stub the only proof I am employed versus others e.g. letters from company or company insurance record?

2. H-1B

from Set. 16 to Oct. 28, I am officically employed by our company (leave of absence), but without payment. does my company still sponsor my H-1B? in other words, is H-1B bound to payment from the company or not? because theoretically I will be back after leave of absence (after Oct. 28), so I would assume during my leave of absence I still hold valid H-1B. am I right?

So based on above, my understanding is:

during my leave of absence (Sep. 16 to Oct. 28), I hold valid H-1B, and valid GC process (count days towards 180 days rule). after Oct. 28, I am still employed by the current company, but I can switch employer with H-1B or EAD. Am I right? please point out the problems of my understanding.

Thanks!
 
Where you read in AC21 that you have to be with the employer for 180 days? 180 days is for only INS if the I-1485 is pending with IND and has not been approved AC21 hits upon. Please read the AC21 .
or AC21 June MEMO from INS.
------------
INA 204(j) provides that:

"A petition under subsection (a)(1)(D) for an individual whose application for
adjustment of status pursuant to section 245 has been filed and remained
unadjudicated for 180 days or more shall remain valid with respect to a new job if
the individual changes jobs or employers if the new job is in the same or a similar
occupational classification as the job for which the petition was filed."

The issue of what happens if a person is terminated before the 180 days expires has
never been fully explored by INS. There is an old case that says that an I-485 is
automatically voided by a person losing his job if the application is based upon a
labor certification. On the other hand, the plain language of the statute allow you
to continue your I-485 if it remains unadjudicated for 180 days and you find another
job in the same or a similar occupation. Therefore it is at least arguable that it
doesn't matter when you are laid off, as long as the I-485 is not denied before the
later of 2 events: 180 day passing from the filing date and you finding a job in the
same or similar occupation.
-----------
do what ever you want to do, it is your life, if you need more answers go and hire a lawyer
 
similar situation but different case

Hi avataar and other gurus,

I have a similar problem and in my case the client I work for has sort of asked me to join them directly else the assignment is cancelled. My employer will not pay me in case I come on bench. I have applied for 485 and its only been a month so far. My employer said that if I can come up with the money to pay my paychecks then he can continue. I can continue but then it costs me a lot of money and moreover I will have double taxation problems.

Can you suggest what is the best alternative ?

Thanks a lot
 
For J27Y1:
To be under H1, you have to be paid throughout. There CANNOT be any unpaid vacation whatsover. Check with the INS regulation. There is no unpaid bench time either..

Avaatar is right in respect to the 180 days rule. But also on the same token, I read somewhere that,To Rajiv Khanna, it means you have to be employed for 180 days. And then To sheila murthy, it means the case remains unadjudicated for 180 days.

The bottom line is, it is still unclear what this AC21 rule is. But fact of the matter is,, do you know of anyone who has been denied based on the change of jobs before 180 days? Surely, I don't.
 
For sunny J. and others,

Just for your information regarding leave of absence for H-1B (it may not be correct, just FYI)

1. http://www.myvisa.com/Visasage/h1bleave.htm

H-1B visas and leaves of absence

A recent correspondence from the INS addressed the issue of maintenance of H-1B status when the foreign national employee goes on an extended leave. The situation concerned a pregnant H-1B foreign national who took time off from her work under the Family and Medical Leave Act. The woman later wanted to take an additional few months off of work and the question was how this would affect her H-1B status. Would such an extended leave jeopardize her H-1B status since she was not in the office working? The INS provided some clarification.

According to a February 2, 2000 letter from Efren Hernandez, INS¡¯s Acting Director of Business and Trade Services, the INS considers the H-1b nonimmigrant alien to be maintaining H-1B status so long as the employer-employee relationship exists between the petitioner and alien. ¡°The employer-employee relationship continues to exist when there is an identifiable tie between the employer and the alien.¡± Therefore, assuming that the woman intended to return to her work after her extended leave and that the employer continued to employ her, the period of time during which she was not in the office would not be considered a period of being out of status.

2. http://216.239.39.100/search?q=cach...001.htm+Family+Leave+Act,+h-1b&hl=en&ie=UTF-8

Finally, the INS has recently stated that H-1B employees are entitled to the same leave as all other employees under the Family Leave Act and/or under the employer maternity or parental leave policies. An H-1B employee who takes such a leave of absence would not violate his or her status, however such employee cannot take more leave than is usually allowed other employees and still be considered in status. For H to H transfer cases where the H-1B employee is on a proper leave but still employed, the INS indicated that a letter from the employer stating the employee is still employed but is on maternity or parental leave would be considered sufficient evidence.
 
RE: Krishna02...J27Y1

--GC IS FOR FUTURE JOB and it doesnt have to do anything whether you currently have a job with GC sponsoring employer or not. So it doesnt matter as long as GC sponsoring employer gives you intent to hire letter once you get GC or I-485 application is pending for 180 days with INS. YOU DONT NEED TO BE WORKING WITH GC SPONSORING EMPLOYER...!

--H1B transfer may pose a problem since if one doesnt have current pay stubs and If INS issue RFE for current pay stubs. But normally they do issue H1B transfer...without I-94 in such cases...and for that you need to go out of US and come back with new I-94. But thats lil bit risky at I-485 stage since that may cause problem since you r in AOS stage. So EAD would be best option for you and find a new job ASAP. There is no need to waste time with the company which cant pay you!!!!

I was laid off right after filing I-485. I did fpound a job within 2 weeks after lay off and did H1 Transfer with new company for a smiliar job. I had I-140 for a bankrupt company and after bankruptcy other company purchased my bankrupt company and filed amended I-140. But INS issue RFE on amended I-140 and even before we reply, i was laid off.....so there was a lot more turmoil then your case and INS still approved my and wife's case without RFE. so no need to get nighmare dreams....just get a new job and get paid...and hire a lawyer in case INS issue RFE!!!!
 
Thanks Hairpat, sunny J, avtaar and others!

I got a job offer back in August but just wait for 180 days. I did waste some time. I will find a lawyer and may start working soon.
 
180 days faq

7. 180 Day Portability Rule: Clearing Up Common Misconceptions
In November, I spoke at an immigration law seminar given by the Practising Law Institute in San Francisco. My topic was the "180 Day Portability" rule, also known as §106(c) of the American Competitiveness in the 21st Century Act (AC-21).
Although the rule is only two sentences long and is stated in simple English, employers and employees alike remain confused as to its meaning.
The law states that both labor certifications and employment-based visa petitions remain valid with respect to a "new job" where the INS fails to adjudicate an application for adjustment of status within 180 days "if the new job is in the same or a similar occupation as the job for which the "petition was approved" or the "(labor) certification was issued".
This seems simple, doesn't it? Of course, since there are currently no INS regulations interpreting the statute, reasonable minds may disagree about what the phrase "same or similar occupation" means. What if a software engineer becomes a senior software engineer? Not much of a stretch. However, if she becomes the VP for Software Operations, her attorney may have to do battle with the government to get her adjustment application approved.
A lot of people get confused when there is a change of
salary, and/or
location
However, since neither are limiting factors under §106(c), both the salary and the location of the applicant's new job should be irrelevant.
Others are confused about whether the rule applies where the applicant changes jobs before the 180-day period has elapsed. Again, the operation of the new rule is not affected by such changes. If an applicant for adjustment of status changes jobs 60 days into the 180-day period, she is home free as long as the INS takes over 180 days to decide the application.
The statute provides that the job offer is prospective only. However, case law imposes an "intent" requirement: An applicant must, at the time that an application for adjustment of status is submitted, have the intent to work for the petitioning employer indefinitely. If the applicant quits to work at a higher-paying job two days after the adjustment application is filed, the INS may seek to deny the application arguing that the applicant lacked the requisite intent at the time that the application was submitted. However, some people think that the rule requires the applicant to work for the petitioning employer for 180 days after the I-485 is submitted. It clearly does not.
 
Dear ghost-rider
Thanks for posting
I hope you have taken info from some lawyer site, please let us know the site

How the INS checks the Intent? Do they keep some psychologist to find out what is in the mind of Employee or administer some Psychological test that proves the Intent of the applicant at the time of Filing I-485?

Intent can be changed any time after filing I-485 or who knows what is in the mind of some one at the time of filing.
What are the proofs for having Intent or not having Intent?

I do not agree with your last lines that "have the intent to work for the petitioning employer indefinitely” what do you mean by indefinitely?
Many lawyers say once you get GC you should work 6 to 12 months and one will be OK, there is nothing in the law that you should work indefinitely for your full life, if that would have been the condition many would have returned the GC and this is not the time for slavery, it has ended long back.
What are your Comments on the case below? That has been approved and the person is working now with GC in hand.


Please read the Case:

"FYI I know a Case of one of my friend he was working with company A and his I-140 was approved for that employer.

and I-485 was not filed by employer A or by my friend immediately
My friend left the Company A and joined Company B by H1B transfer.

Later he met a lawyer and lawyer asked him that why he has not filed I-1485 based on past Employer I-140.

My friend asked the lawyer that he is not working with A how he can file I-1485.

Lawyer told him that can he provide him the I-140 copy or Filing receipt of I-140 with past employer A.

My friend managed to get the copy of I-140 that was approved for A.

My friend asked the lawyer that he has NO INTENT to work with employer A after GC and he told lawyer that it does not seem to be Legal to file I-485 when he is not working with company A.

Lawyer told him it is small risk of 108 days after filing I-485 for which he should be ready, Lawyer told him how the INS know that YOU have INTENT or NO INTENT to work with A and Intent can change any time and GC is for future job.

Lawyer filed the I-485, my friend got the receipt of filingI-485 and EAD.

When 180 days were over after filing I-1485, lawyer sent a change of Intent letter to INS and new job offer letter from the employer B.

He did the fingerprints and 2 months back got his Interview notice, he went to Interview in high anxiety, but the INS officer asked only Employer letter and he gave the Employer B letter, showed the Pay Stubs from B and got the Passport stamped or got the GC.
in the above case the lawyer was very aggressive and used AC21 after 180 days.

and employer A still does not know that my friend got GC based on I-140 that was approved for A."
 
Thanks haripat

Thanks for the straight answer. I have a job with a new company. My sponsor is the company I am with now and been with for 2.5 years so far. My question is if there is any rfe next year will they want a W2 for this year from my current company ? Does anybody get rfe like that.

I can and am hoping to join this new company. However, do I have to inform INS asa 180 days are over ? Or should I try to get the salary thru my current company.

Thanks
 
Krishna02



INS can send RFE for new Employer letter, Photographs or your current 2-3 pay stubs at that time or anything, you should always keep the copy of your income tax filling. I do not think they will ask W-2 from past employer.


Just join the new company on EAD

some lawyers say that it is better to send Intent change or Employer Switch letter after 180 days some advice to wait for RFE if INS asks for new employer and then reply, . Your Lawyer will take care of everything.

You should get Salary through the new Employer
 
clarification

When you said they wont ask w2 from past employer, are you refering to the original sponsor who filed 140 ? The new employer is ready to pay a month after the EAD that will make it about 3 months from my 485 RD. I see two options. Either I can take a two month vacation to India or join the new company at that time. My current company will not have problems since they are looking into me as an expense rather than a benefit (I dont like their business plan anyway).

When I join the new company and ins does RFE and asks for w2 of last year (where I cant show 2-3 months of sponsor pay as i joined new company) what is the best alternative ? Paychecks wont be a problems since the new company is more of a solution provide not a consultant provider. When and how long should I plan to go to my home country ?

Thanks Ishwar and others
 
You must log in or register to reply here.
Top