I got laid off after 18month and need your help, thanks!

P

PLL

Registered Users (C)
Hello, everyone--
I found this forum a few days ago. This is the best immigration forum I've ever seen. There're many enthusiastic and smart guys who give us encourage and help. Here I hope you could help me in figuring out what I should do. Thanks a lot.


I was laid off recently. The following is my case summary.

case: wac-02-035-5xxxx
RFE received: 11/22/02
Current status per inquiry: under name check since Feburary.

My company will definitely inform INS, perhaps they've done.Once INS receive their letter:

1. What will INS usually do? Will they send me a second RFE? I found in the recent touched files several got second RFE.
2. My first RFE required me to reply within 80 days. If I receive 2nd RFE, does it means I need to reply before their deadline(like 80days). What role AC21 plays here ?
3. I applied EAD several days ago(before laid off) and got receipt. Have you ever heard RFE for EAD?
4. My spouse as my beneficiary had EAD card. It will be expire soon. DO you think it's better to renew EAD or apply F1(currently a student)?

Your opinion is highly appreciated.


PLL
 
My company will definitely inform INS, perhaps they've done.

Not necessarily. As a rule, a company's HR consults their immigration attorney and the attorney advises how to approach a non-immigrant employee termination. Actually, you should have done this right away as soon as you have learned about the layoff. If you are on friendly terms with the company's immigration attorney, call him/her and ask what was the company's move in regards of your Green Card. By law, they bound to inform INS that H-1B position was terminated, rendering your visa void. But they are not required by law to withdraw your I-140 petition.

You should understand, however, that all immigration attorneys are bound to corporations sponsoring non-immigrants, not the non-immigrants. Therefore, if you are not on friendly terms with the attorney, contents of your conversation (including the possibility of withdrawal of I-140) will become known to the company. Which is not what you might want at this point.

Generally, a laid off person is considered to be fine as opposed to a person who voluntarily changes jobs, for AC21 purposes. Withdrawal of I-140, however, aggravates the whole mess. Until the final regulations on AC21 are published, it will remain unknown what would be the possible outcome of an average AC21 case.

Anyway, for AC21 to kick in, you need another job. And you need it FAST. Considering that you've been waiting for 18 months now, the window of opportunity is shrinking by the day. May be your case won't be picked up for 3 months from now or may be it will be only a month, you never know. By that time you need a new job.

1. What will INS usually do? Will they send me a second RFE? I found in the recent touched files several got second RFE.

Why, yes, most likely. Also, you might be looking at an interview.

2. My first RFE required me to reply within 80 days. If I receive 2nd RFE, does it means I need to reply before their deadline(like 80days). What role AC21 plays here ?

AC21 does not affect the timeframe you are given to respond to an RFE.

3. I applied EAD several days ago(before laid off) and got receipt. Have you ever heard RFE for EAD?

Sometimes it happens. But if all necessary supporting documents are accompanying your EAD application, most likely they won't issue an RFE.

4. My spouse as my beneficiary had EAD card. It will be expire soon. DO you think it's better to renew EAD or apply F1(currently a student)?

Am I the only one on this board who is too old for an F-1?:) Just kidding.

If your spouse is working on EAD, then do not hesitate to renew it. If your spouse is not working on EAD, but planning to, then go ahead and renew it, whenever you are ready. As a rule of thumb, file for renewal 90 days before the old one expires. That way you can get an interim EAD.

I am not proficient with F-1 visas to tell if a holder can work.

As long as you are worried about your spouse's status, your pending I-485 is protecting her/him just fine.
 
Sorry to hear your layoff news.

You don't have problem because your I485 pending is over 180 days. The company couldn't cancel your I140 approval. Just use
EAD to find another job. Nothing you need to worry about.

GOOD LUCK to job hunting!
 
Thanks BM for such a nice reply.

PLL,

There is nothing to add to BM's reply, just want to say

If you don't get a job or job offer and if you get a RFE or interview then most probably you are screwed. I don't want to scare you but be prepare for results.

Most important thing is find a job ASAP.
 
BitterMan,

Excellent response. Definitely worth preserving.

Vipsha, Silly Man,

I think we have been getting too many EAD, 485 <> 180 days laid off questions in forum. (Though it is the wrong forum for these questions). But I think BitterMan's post was an excellent reply that pretty much answers every question anyone can have about the process. How about including this link in the FAQ section. So that we can refer to it instead of typing out the whole story each and every time, atleast 5 posts on it this week already.
 
I got laid off after 18month and need your help, thanks

BM - no doubt an excellant write-up.

I went through the same thing. Got laid off after 11 months of filing my 485.

BM and others are correct you need to find another job asap, geographical location doesn't matter as long as the job description is the same. Though, to prevent a transfer to another service center you may want to stay within CSC jurisdiction or atleast maintain an address in the area (as is done by several people I know and they have got their GC's).

I found another job pretty quickly (in Jan ' 03) and it was only due to the fact that I was on an EAD and no sponsorship was needed. Though the market is still down, if you try hard and persist you will find something soon. Ensure that your offer letter lists your job description as the same on the LC or pretty close. Also take care about the LC salary figure. AC21 can be used and you will have to send a letter to the INS informing them of the change in employer & sponsor of GC.

Most important see if your current lawyer will continue to advise you on your case and take his/her opinion. Since AC21 has become so common due to the large number of lay offs and increased processing times, there is a lot of precedence for almost every situation.

Be positive and concentrate on finding a new job in the same category and you should be ok.



---------------------------------------------------------------------------
Talk to your lawyer - the system thinks he is more intelligent
 
There is a lot of mention about AC21 rule. Can you please clarify
whether AC21 holds good in the following scenario:

I140/485/EAD/AP applied in april 1st week.
I140 is going to take atleast 9 - 12 months.

As per AC21, if 180 days has past since the filing of 485, one
can change jobs, but the confusion is regarding concurrent filing
of I140.

does the 180day rule apply only when I140 is approved or
is 180day rule independent of I140 approval?

any info would be of great help,
thanks,
VG
 
Hello, Guys --
Thank you so much for your advice. I know I've to find a job in DAYS. Or, all my previous endeavour will be wasted. Unfortunately, I don't have EAD and it takes at least another 80days. I hope there's company still sponsor H-1.
BM, thank you. GCDreamz, thanks for your comments. I'll remember to ask my next employer to copy my job description if I could find one.

Thanks and good luck to you all.
PLL
 
Originally posted by Vermot_Goldie
...
does the 180day rule apply only when I140 is approved or
is 180day rule independent of I140 approval?
Click to expand...

Unfortunately, until the final regulations on AC21 are published, this question will remain unanswered. However, the last word on the street was that AC21 unlikely applies to the concurrent I-140 and I-485 filings.
 
bitterman,
the statement is little confusing..
do you mean to say that AC21 is applicable to I140 pending
cases too?

regards,
VG
 
Originally posted by Vermot_Goldie
do you mean to say that AC21 is applicable to I140 pending
cases too?
Click to expand...

I am sorry if the statement was not clear for the first time.

AC21, specifically, its "Green Card" portion, applies to pending I-485 applications only. It is muddy as it is when you try to use it for I-485 applications filed after I-140 has been approved. But when it comes to concurrent filings of I-140 and I-485, the law and regulations around it are completely silent.

Some immigration attorneys voice an opinion that AC21 is not applicable to the concurrent filings at all. No matter if your I-140 will be approved in the process. I'm pretty sure that a responsible immigration attorney will not advise you to exercise AC21 with a concurrent filing. Until the final regulations are published, anyway.

Hope this argument satisfies your question.
 
volunatrily changing jobs after 180 days

>>Generally, a laid off person is considered to be fine as opposed >>to a person who voluntarily changes jobs, for AC21 purposes
I was under the impression that a 485 applicant can also change jobs using AC 21. AC21 does not indicate any conditions for change of jobs, does it?
 
Re: volunatrily changing jobs after 180 days

Originally posted by abtoaajaa
I was under the impression that a 485 applicant can also change jobs using AC 21. AC21 does not indicate any conditions for change of jobs, does it?
Click to expand...

I-485 applicants are the only group that has a benefit of changing employers and continuing with their Green Card process.

As for layoff/voluntary job change, we can't rely on a reputable source of information here. No final INS regulations were published on how to approach AC21 cases. It means that an immigration officer will exercise his/hers own discretion to adjudicate each individual case. So, at this point it boils down to simple logic. A layoff gives you more benefits than a voluntary job change if it comes to an interview and you have to reason with an immigration officer.

And yes, AC21 does indicate conditions for the job change. The conditions are pretty vague and open for interpretation. Here's an excerpt from "MEMORANDUM FOR ALL SERVICE CENTER DIRECTORS; REGIONAL DIRECTORS; DIRECTOR, OFFICER DEVELOPMENT TRAINING FACILITY, GLYNCO; DIRECTOR, OFFICER DEVELOPMENT TRAINING FACILITY, ARTESIA" from June 19th, 2001. To my best knowledge, it is the latest guidance all field officers have.

F. AC21 §106(c) - Change of Employment Permitted in Cases of Lengthy Adjustment Adjudication

The AC21 §106(c) provides that the certification or Form 1- 140 approval of an EB immigrant petition shall remain valid when an alien changes jobs, if:

(a) a Form 1-485, Application to Adjust Status, on the basis of the EB immigrant petition has been tiled and remained unadjudicated for 180 days or more; and
(b) the new job is in the same or similar occupational classification as the job for which the certification or approval was initially made.

1. Procedures for Processing Benefits under AC21 §106(c)
If an alien has complied with the above statutory requirements, adjudicators shall not deny applications for adjustment of status on the basis that the alien has changed jobs. Under present practices it is expected that an 1-485 applicant notify the Service when they no longer intend to enter into employment with the employer who sponsored them on the 1-140 petition. The Service should continue to expect the applicant to submit a letter notifying INS of this change in intent. If the Adjudicator has reason to believe that the applicant's intent has changed a Request for Evidence (RFE) may be issued to clarify the applicant's intent in regards to employment.

In instances where the applicant no longer intends to be employed by the employer who sponsored him/her on the 1- 140, the Service should request a letter of employment from the new employer. The letter from the new employer verifying that the job offer exists should contain the new job title, job description and salary. This information is necessary to determine whether the new job is in the same or similar occupation and to determine whether the alien is admissible under the public charge ground of inadmissibility at INA §212(a)(4). To determine whether a new job is in the same or similar occupational classification as the original job for which the certification or. approval was initially made, the adjudicating officer may consult the Department of Labor's Dictionary of Occupational Titles or its online O*NET classification system or similar publications.

The Service is currently formulating proposed regulations to establish a policy framework in which to adjudicate AC21 §106(c) benefits. Until the Service promulgates final regulations establishing such a policy framework, adjudicators shall consult, on a case by case basis, with Headquarters before denying cases on the basis that the new job is not in the same or similar classification.

The text was scanned and optically recognized. Some errors and recognition discrepancies may be out there. For a complete copy of the document you may visit the following link:

http://www.usvisanews.com/memo1339.pdf
 
great response

are you rajiv khanna in reality? Never seen such response on my past several years on this board.
anyway
this statement
>>In instances where the applicant no longer intends to be >>employed by the employer who sponsored him/her on the 1- >>140, the Service should request a letter of employment from >>the new employer

implies that the applicant can also change his intention to be employed by the new employer. Doesn't it
in an interview - I can always quote this. The statement is pretty clear.

Of course, the officer can overrule me and kick me out ie. if they ever look at my file.
 
thanks

Originally posted by abtoaajaa
are you rajiv khanna in reality? Never seen such response on my past several years on this board.
Click to expand...

No, I am not. I am not a lawyer, either. I just happen to do my homework.

Originally posted by abtoaajaa
anyway
this statement
>>In instances where the applicant no longer intends to be >>employed by the employer who sponsored him/her on the 1- >>140, the Service should request a letter of employment from >>the new employer

implies that the applicant can also change his intention to be employed by the new employer. Doesn't it
in an interview - I can always quote this. The statement is pretty clear.

Of course, the officer can overrule me and kick me out ie. if they ever look at my file.
Click to expand...

One can change a number of employers while waiting for I-485 adjudication using the same AC21 provisions.

I do not believe that the quoted statement opens a loophole in the law. One thing requires clarification at this point, though. This thing is how to go about changing a job after getting your Green Card.

In fact, the basis for Employment- based Green Cards is a permanent employment. If you are not planning to work for the sponsoring employer "permanently", it is called a fraud.

While duration of this "permanent" employment is no longer defined (previously it was 2 years sharp), it is advisable to stay with the sponsoring employer anywhere from two weeks to six months after getting the Green Card. Generally, after six months you can safely change employment without further immigration implications. It is also advisable to retain the salary or compensation paystubs should you ever want to file for the US citizenship.

But the quoted statement does not apply to change of jobs after getting the Green Card, because I-485 was approved and is no longer pending, therefore AC21 is not applicable.
 
interpretation of the term indefinite employment

thanks again for a comprehensive response
>>(previously it was 2 years sharp)
this is interesting. 2 years from the time of getting a green card OR the total time of employment OR since the time green card was filed.
Reason I am asking is that if in the 485 interview (should it ever happen) the officer ever creates a problem with my intent of not being with my employer(I have been with him for 4 years now), I can use this clause (meant for GC holders) to justify that I have not even violated the law in its spirit(violation is a strong term, the phrase 'interpreted the law in its spirit' suits more)
can one file an appeal for 485 denial (on these grounds)
apologies for the extended discussion but
I am trying to investigate the matter from all angles and hopefully this will be of benefit to other readers also
Thanks
 
Re: interpretation of the term indefinite employment

Originally posted by abtoaajaa
thanks again for a comprehensive response
>>(previously it was 2 years sharp)
this is interesting. 2 years from the time of getting a green card OR the total time of employment OR since the time green card was filed.
Reason I am asking is that if in the 485 interview (should it ever happen) the officer ever creates a problem with my intent of not being with my employer(I have been with him for 4 years now), I can use this clause (meant for GC holders) to justify that I have not even violated the law in its spirit(violation is a strong term, the phrase 'interpreted the law in its spirit' suits more)
can one file an appeal for 485 denial (on these grounds)
Click to expand...

I said - previously. 2 years are no longer there. Nevertheless, these years were counted from the moment you get I-551 stamp in your passport (or whatever that is they are stamping after I-485 approval). In other words, it is time after the Green Card, not before it.

Should you undergo an interview, your intent to stay with the sponsoring employer most likely will not be questioned, unless:

- you don't have a current job with the sponsoring employer; or have a job with another employer.

- you did change jobs exercising AC21.

There are other circumstances, of course, but they are supposed to be sorted out before the interview (like if the sponsoring company is real and if it can afford paying you the salary).

In the latter case, however, you are free to argue your point, that is - why you changed jobs in the first place. A layoff is a very good reason to change a job, for example; or you were offered a better salary; or whatever.

The former case is a bit harder. You will have to bend backwards to prove that the offered employment is not a fake and you are actually intending to work for the sponsoring employer. As far as I understand, this kind of cases usually goes through consular processing and people sponsored are actually not in the US.

I do not know much about appealing I-485 denials. To my best knowledge, the decision on the majority of the applications is final. Should you be able to file an appeal, the fact that it is pending does not provide you with a legal status in the country. Then again, I may be wrong.
 
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