I-485 RFE Issues - Help Gurus

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nashish

New Member
Hi,
I filed for I 485 on Sept. 2001, in Jan 2002, my old company closed and in Feb 2002, I accepted another offer, hoping to use portability. Now I got an RFE asking to justify the portability since I used the portability a little before 6 months.
I am trying to find out if there is any hope with my case any more?

Please help...
 
What does the RFE say exactly? When you say they are asking to justify the use of portability, do you mean to say they are questioning the timing of its use or the nature of the new job itself? Have you informed the INS when you switched jobs? Please post more details about the sequence of events and the exact wordings of the RFE.
 
Thanks cmr,
Well, here are the dates:
I-485 Applied : 21 Sept 2001.
INS recpt of I-485: 22 Oct 2001.
I joined the new co.: Feb 25th 2002.

The RFE:
Please note that less than 180 days had ellapsed between the filling of the applicant's I485 and the date that he taken his employment with new employer. Therefore please explain, how the applicant is eligible for 106(C) of AC21?

Thanks again.
 
Consult good lawyer,

I found this interpretation from website

http://immigration.about.com/library/weekly/aa012902b.htm

Question #5: Is our Adjustment of Status compromised by my termination? (I expect to be able to obtain a similar position). 2. Can we both work in the US with the EAD cards we now have. 3. What is the time frame to look for a new employer? And what happens if we move to another state?

Carl Shusterman: Termination is probably the clearest case where the 180-day portability rule controls. Although the statute does not specifically provide, case law imposes an "intent" requirement on most applicants for adjustment of status under the employment-based categories. If you are terminated from your job after filing Form I-485, for any reason, it is clear that the change of jobs was beyond your control and not because of a lack of intent on your part to work for the sponsoring employer indefinitely. Nowhere in the law does the location of your new job become relevant.


again, this is just chat, you need to hire good lawyer to respond REF.

Good luck,

JB
 
I have heard the arguments from many people and read a few pieces written by some reputed immigration attorneys that a 485 applicant need not wait until 180 days to switch the jobs. Rather the AC(21) can be used to change the employers anytime after filing 485 provided the case is not adjudicated within 180 days of filing the 485. In other words it has been argued that one can change the job within the 180 day period anticipating a non-adjudication of the case before the 180 day period. The only risk of doing this is if the case is adjudicated within 180 days, the applicant will no longer be eligible to use the AC(21) clause.
Well this is only from what I've heard and we all know that nobody is totally sure about the INS guidelines on this clause. But if I were you I would have my attorney reply to INS explaining this argument and for me you seem to be totally eligible for using AC(21). I read from a recent thread on this board that the reason for too many RFEs these days is because of the newly recruited IIOs who are still learning many things(including AC(21)). So there is every chance that most of them have less immigration knowledge than most of the knowledgable people on this board.

Again these are only my opinions and I may be totally wrong. Discuss the situation with your lawyer for more information and keep us posted. Also let us know if the new job is similar to the old one and whether you've informed INS when you switched the jobs.

Good luck and be brave.
 
nashish,

I remember reading about such cases (where people were planning to leave or were out of a job before six months) on the Sheela Murthy chat archives. Her advice in most of the cases was to go ahead and do whatever needed to be done and hope that the INS would not adjudicate the petition before six months had passed which is pertinent to your situation. Her arguement in most cases was that the INS has not come out with policies on AC21 anyway so a good arguement could be made if a person has been laid off or as in your case the company shut down totally before 6 months had passed after I485 filing.

What does your lawyer say about all this? Dude, it might help to talk with a seasoned attorney such as Sheela Murthy or Rajiv Khanna on advice on how to reply to this RFE. This is the time where the money would be well spent in getting the right advice form the right person since you are so close to getting your GC.

gcfasttrack
 
Thanks a bunch you all!
To answer some questions here, my new job is similar to the old one. Also, we had informed INS as soon as I started on this position since it alos involved moving from one state to other.

As for talking to my attorney, spoke to her y'day and she seems to be of he opinion that we should respond to the RFE on the lines of something like you all have suggested. I would try to get the exact words from her before things are sent in to INS.

I particularly liked the suggestion about dislosing the company's closure. Would talk to my lawyer.

Thanks for the motivation.
 
I think you are fine. your case was not

adjudicated for 180 days so you clearly can use AC-21. Only the question about intent. I think 180 days overrides intent also.
Please post how the outcome comes.
 
Im quite surprised at the wording of the rfe though...the 180 days rule was instituted not to punish the applicant but to punish the officers if they took longer than 180 days to adjudicate...

but as per the rfe it seems that the applicant need to have stayed in the job for at least 180 days...what then happens to people who have been laid off before 180 days?
 
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