I140 pending but Got the EAD card and passed 180 days

S

sanops

Registered Users (C)
Hi,

I have filed I-140 and I-485 concurrently. Also I have passed 180 days after filing the I485. I got my EAD card also.

But I-140 has not been approved from the vermount center till now.

If I get laid off by my company now, Can I change my job with the EAD I have and continue with my GC without having any decission on the I140 approval ?

Please reply asap.

regards
 
AC21 portability

This is what everybody thinks about the portability rule (this is just assumption and there is no guarentee that INS would rule in favor).

As long as your company does not revoke I140 application and as long as your company responds to any RFE for I140 even after a layoff you should be able to change job.

The major issue of this portability with I140 not being adjudicated yet is that the applying company can still withdraw the petition and hence you are in someway bound to the company.

Again this is the general thinking and not necessarily the way it would happen.

Good luck
 
portability

ramss thanks for the very interesting response. one related question:

what do you mean by saying that the company that originally applied for the I-140 (that is the former employer) would have to respond to any further RFE? Would the topic of such RFE be whether the employee is still working at the Company, meaning the Company would have to make up something (or did I miss the point)?
 
another question

Say if someone got lay off and can't find a job with this economy down turn time. How long can someone legally stay in US after being lay off while his/her 485 is still pending?
 
Valid status

Status of a person is valid till the I-485 is adjudicated. Ofcourse if I140 is revoked then it is assumed that the I485 also will be revoked at which point of time the status becomes invalid.

As to the RFE what I understand is the following:

If INS raises an issue that needs just a statement from the company about their financial status or any other information about the company which in no way needs the employee status with the company, and if the company responds in a +ve way that should be OK. If the RFE needs the employee status with the company then that would be a different and difficult situation.
 
lay off and immigration

I am just trying to understand this whole deal about lay off and immigration status.

when you said that I-140 is being revoked, do you mean that the company purposely tell BCIS that this person does not work in that company any longer; thus, request BCIS to withdraw the application?

Another things, let's say if I-140 is being approved couple days after lay off ; will that I-140 still be considered as "valid" ?

Also, if he/she can't find a job to replace his/her previous job , will his/her I-485 be rejected with the assumption he has his 140 approved before he/she left the first company?

In the case sanops, should he/she hire a lawyer? while most of his/her paperwork is done. I recalled metioning to a lawyer about this lay off situation with pending 140 and 485, but that lawyer doesn't think that this is a "case" because once 485 is filed, it's just a matter of being approved or rejected. Is this true? Even my lawyer does think the same way, that "there is no case". What I think is true is that there is no written "law" for this situation and really, it's just a matter of "lucky".
 
GC is for Future employment only

Green card is for future employment with the company that sponsors your GC process.

So it is not necessary that you have to be currently working or work throughout the entire process of GC. But the company that processes and the employee must have mutual intent to work permanently with the company at the time of or after the GC approval. So as long as you have good terms with your employer (who processes GC) you can even work for some other company using H1 and go back to your GC employer once or before GC is approved.
One of our friends did it.. He had good terms with the HR

Please refer some lawyer's website (eg murthy.com) for further explanation

Thanks
 
I am confused

well... how can someone still maintain good relationship with a company which lay him off?I don't think I can go back to work at a company that lay me off for a certain period of time by law. I mean, even the HR or your boss agree not to withdraw your 140 application. That doesn't mean that INS people will care about that. Where do you read about this at murthy.com?
 
Hi MM110
Murthy.Com doesnot discuss about layoff part as I said. This was my friend's experience and he was not laid off. He was in bench and so he switched employers

http://www.murthy.com/ukac21.html
http://www.murthy.com/UD140rev.html

http://www.murthy.com/UDportis.html
http://www.murthy.com/UDac21qa.html

http://www.hooyou.com/news/news011003h-1b.htm


This shall give you a better understanding about AC21 portability and I-140 revokation.

For sanops Question

It is not safe to use EAD until your I-140 is approved. Try to work using H1 if you have not reached 6 yrs limit. Start using EAD and AP once your I-140 is approved.
 
Last edited by a moderator:
Thanks, sbctsublc.

I haven't read any law or written memo about lay off and pending 140 more than 300 days and 485 more than 180 days yet; hope they will be more flexible. I just hope there is a lawyer that can defend this specific case. I haven't got any satisfaction on answers given in forum or from lawyers. So, if you know any good lawyer, please let me know
 
Hi Mm110,
I've not read your other posts. Sorry that your I-140 has been pending for more than 300 days. That's too much. Did you try calling INS? What did they say? Your file is in an officer hands atleast?
 
life problem

A month ago, my lawyer has contacted INS, they said it has been assigned to a specific officer. My boss called them and talked to one of IIO and the officer said that my case is filed concurrently (140 filed in June02 and 485 is filed Oct02)and I have change of address; so that will delay my case. They told my boss to wait another 4-6 weeks. it's so ridiculous because my co-worker who filed later than me already got approval. I tried local senator now; also, try to get another lawyer. Can't stay much longer in the company because of security clearance required for next project.
 
info about AC21 portability incase concurrent filing.

The concurrent I-140/I-485 filing is supposed to permit the alien a number of benefits,
including toll of unlawful presence, resuming a legal status pending adjudication of I-485,
availability of work permit card and advance parole for international travel, and similar benefits
to the accompanying family members. Additionally, there was an unanswered question as to
whether or not 180-day rule of AC 21 would be attached to such alien no matter whether the
underlying I-140 petition is approved within 180 days.

The agency initially answered this question by adopting a policy that I-140 petition would be
adjudicated in 60 days and pending adjudication of I-140, the agency would not grant EAD and Advance Parole.
However, this policy left another question unanswered regarding the impact of I-140 denial on the pending I-485.
Under the law, I-485 remains intact unless it is denied as separate from the denial of I-140.
Traditionally, the agency followed a practice of denying I-140 petition and acting on the pending I-485
separately which usually took time. In order to prevent the abuse of such practice, the agency
recently instructed the field offices to deny all the accompanying applications including
I-485, I-485A, I-765, and I-131 "simultaneously" when the field offices deny the underlying I-140.

Accordingly, unless the I-140 petition is prima facie eligible, the concurrent filing of
I-140/I-485 could bring damages to the aliens, including waste of a large amount of filing fees
and in the case of 245(i) filing, exposure of illegal status and adverse evidence to the agency.
Concurrent filing is not a panacea for everyone!

Reportedly the agency has been receiving concurrent filing from aliens who failed to meet the
prima facie eligibility and I-140/I-485 filing was particularly abused by labor certification
waiver cases such as National Interest Waiver. Without doubt, this new policy will reduce the number
of frivolous filing or eligibility-suspect case filings.
 
Friends please comment on my case!

Experts Please comment on this:
Concurrent(140 & 485 RD same day) filing, passed 6 months. EAD, AP and FP approved, still waiting for 140 approval. Past 4 years I am working for my brothers company. Now my Client is offering Full Time position, I have to join within a month, I bet my 140 won't approve before that. My brother will support in all aspects for this GC process. Can I join for this Full Time position with EAD? If so, in the future if I get any RFE's for 140 or 485 what are my options. For this type of case, for what type of RFE my present employer can not answer.
 
Many of us are same boat. You have the advantge of your brother owned company. GC is for future job.Hence need not have worry. It is not going to affect you in anyway. Becool buddy.
 
question

Do u guys hear of LC substitution? Does that mean, u can apply multiple I-140 as u changed to another company? Who knows this, please tell me....

Lot's of us have similar case as Winwin, 140 & 485 pending and over 180 days, does his/her brother's company has the eligibility to reply to any RFEs even winwin is not employed in that company anymore? My current company, who applied for me I140 supports me too, but they can't support me anymore once I leave the company.

Anyway, should we apply another 140 when we change job with previous 140 pending?

Thanks everybody...

P.S.
Winwin, such a lucky one!...I need to change job, can I work at your brother's? :)
 
As regards to I-140 and layoffs and change of jobs- there was some commentry on Shusterman that said the layoff should not have any impact on on anything. Provided the laying-off company does not actually withdraw the I140 petition. And alsoif there is an RFE and the laying-off company responds to it suitably it should be OK. If there is no RFE on I140 and your comapmany does not withdraw the petition - you should be OK.
 
MM10 , You can apply for two I-140 one with CP option other Adjustment status option. Even if one I-140 is revoked you can substitute it by another I-140. I am talking about this issue with my Attorney. If i get further info i will let you know
 
thanks, guys

tiger, Your words make me relieved. Btw, who is Shusterman ?

tammy2, Thanks alot! anyway, what is I140 with CP option ?
 
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