I485 Employment Question

[VSaradhi]

Hi All,

My wife had to resign from her company for some health reasons while our I-140/I-485(her company filed them) are pending at TSC. Her company said they would NOT revoke her I-140. She changed her status to H4, though she has EAD from her company. From the current processing dates it looks like our I-140/I-485 are likely to be adjudicated in a couple of months. In this back-drop, I have a question.

Does she have to be legally employed in US on the date her I-485 is approved OR After I-485 is approved , to maintain validity ?

Please respond.

Thanks and Regards,

VSaradhi

 

[guju]

She has to have a job that will start the day her 485 is approved and then she will have to work atleast 6 months to a year for the company that filled her 140. You will need to use AC21 if she wishes to work for some other company right when her 485 is approved. If you are lucky you will get no RFE for proof of job, and also i have not heard or read anywhere that someone got into trouble because they didn't work for a minimum of 6 months after getting their 485 approved.

 

[pralay]

Does she have to be legally employed in US on the date her I-485 is approved OR After I-485 is approved , to maintain validity ?

She needs to join her sponsorer company upon I-485 approval to prove that she intends to work for that company "permenently" with good faith. Otherwise (if she never works after getting GC and don't use AC21 before getting GC), her GC could be considered as fraud.
On the other hand, it's not required to work for sponsorer company before I-485 approval - as long as she is in valid visa status. But if there is RFE/interview, proof of burden on her to prove that she intends to work for sponsorer company "permanently" upon receiving GC. At the same time, company also has to declare that the position specified in LC + I-140 is still open and they are willing to employ her (in the same position) upon GC approval.

 

[fast_gc_seeker]

Hi All,



Does she have to be legally employed in US on the date her I-485 is approved OR After I-485 is approved , to maintain validity ?

Please respond.

Thanks and Regards,

VSaradhi

No she dosent. GC is for future employment but there is no
clear law which says that future employment has to be with
sponsoring employer.

Labor laws cannot force anybody to work for any employer
which means once GC is approved u r free to work for sponsoring
employer or somebody else. Once approved and if u dont
want to work for sponsoring employer u can give many reasons
to defend you but I dont think anybody can take u to court
if u dont work for sponsoring employer.

 

[fast_gc_seeker]

....

i have not heard or read anywhere that someone got into trouble because they didn't work for a minimum of 6 months after getting their 485 approved.

Thats exactly what I mean. There is no such law!

 

[pralay]

Once approved and if u dont
want to work for sponsoring employer u can give many reasons
to defend you but I dont think anybody can take u to court
if u dont work for sponsoring employer.

Well, Here my two cents:
1. You don't need "many" reasons, but one good "convincing" reason. For example, a reason could be your sponsoring company did not agree to give you the salary specified in LC, or they did not offer the same position specified in LC. However, burden of proof is on you to make your reason convincing.
2. Yes, "anybody" can take you to court - it could be your sponsoring employer (by reporting to USCIS) or USCIS itself - especially at the time of citizenship application.
3. Lack of clear law not not mean that it's walk-over for GC holder, but it's a plain field for both - USCIS and GC holder. But as the laws/memo are written by USCIS, there is a good possibility that the immigration court verdict will go against USCIS, as they did not define the law clearly. But before the verdict will come in favor of you, you already shelled out $$$ for your attorney.

 

[fast_gc_seeker]

Well, Here my two cents:
1. You don't need "many" reasons, but one good "convincing" reason. For example, a reason could be your sponsoring company did not agree to give you the salary specified in LC, or they did not offer the same position specified in LC. However, burden of proof is on you to make your reason convincing.
2. Yes, "anybody" can take you to court - it could be your sponsoring employer (by reporting to USCIS) or USCIS itself - especially at the time of citizenship application.
3. Lack of clear law not not mean that it's walk-over for GC holder, but it's a plain field for both - USCIS and GC holder. But as the laws/memo are written by USCIS, there is a good possibility that the immigration court verdict will go against USCIS, as they did not define the law clearly. But before the verdict will come in favor of you, you already shelled out $$$ for your attorney.

yeah true, but 90% of ppl I know have quit GC sponsoring company
after they got their 485=FREEDOM approved.

Do u know of any case where somebody was taken to court just
because he/she left a job immediately after 485 approval? I havent
heard of any case.

For me its a simple case of quitting a job[ie quiting a job as everybody does in day to day life] and dont believe anybody can proove in court that I quit because I got my GC. Hope this makes sense to all.

 

[pralay]

yeah true, but 90% of ppl I know have quit GC sponsoring company
after they got their 485=FREEDOM approved.

Do u know of any case where somebody was taken to court just
because he/she left a job immediately after 485 approval? I havent
heard of any case.

Well, the intention or desire of taking risks varies person to person. When you say "I dont think anybody can take u to court" you are giving a wrong notion of security without educating people completely - and without any hardfact and any research on this subject. As there is no clear law - probably nothing will happen or probably something wrong will happen. You are preaching only the good side. Even I myself changed job before the completion of one year after getting GC, even though my attorney advised me to stay atleast one year. I did knowing all the factors and all sides - not relying on false sense of security given by someone.

BTW, did your 90% people got citizenship yet? So you better wait until you draw your conclusion. Surge of employment based GC and frequent job change are very new things started only in last decade. Most of them will get citizenship soon or on the way of getting it. Before that (in 80's, 70's) EB GC was very low and job switching was even lower. For example, person who got GC working for IBM or AT&T probably stayed 4-5 more years after getting GC. So it's unlikely you will get good statistics about the impact of job switching after getting GC in previous decades.

For me its a simple case of quitting a job[ie quiting a job as everybody does in day to day life] and dont believe anybody can proove in court that I quit because I got my GC. Hope this makes sense to all.

Burden of proof is not on USCIS, but on you. It's not criminal/civil court where you are innocent until proven guity. It's immigration court where you are guilty until proven innocent (ironically). If you leave your job within one months after getting GC, USCIS logically can conclude that your intention of changing job existed even before getting GC approval. Now the burden on you to prove otherwise.

 

[fast_gc_seeker]

BTW, did your 90% people got citizenship yet?

Citizenship can be applied 5 yrs after getting GC and it may take another 5 yrs after that to get ur Citizenship. so r u asking people to wait 10 odd yrs with their employers after getting GC because u r aware of some law by which people can be taken to court as they quit jobs after getting GC?

what about following cases?

1) people dont want to work in an environment but they should continue
to work with GC sponsoring company for the fear that their GC/Citizenship may be revoked because of some USCIS law that u r aware of

2) people are asked to do some work which they are not enjoying
but they should continue to work with GC sponsoring company for the fear that their GC/Citizenship may be revoked because of some USCIS law that u r aware of

3) People want to advance their career but they should continue
to work with GC sponsoring company for the fear that their GC/Citizenship may be revoked because of some USCIS law that u r aware of

4) People are asked to do something which they cant[many IT jobs will have such examples in which learning new technology is a must and sometimes its hard to catch up with everything] but they should continue to work with GC sponsoring company for the fear that their GC/Citizenship may be revoked because of some USCIS law that u r aware of

5) People are not happy with their salary and not getting a raise but they should continue to work with GC sponsoring company for the fear that their GC/Citizenship may be revoked because of some USCIS law that u r aware of

there are many many more cases like above which can force people to
quit the jobs[not only because they have GC]. R u asking such people
to continue to work[5+ yrs ] because of case being filed against them by USCIS?

If you leave your job within one months after getting GC, USCIS logically can conclude that your intention of changing job existed even before getting GC approval

From which USCIS law u made ur conclusion? or its a law u assumed and are informing people? Wake up man show us some proof of ur comments and then people will start believing u.

 

[TheRealCanadian]

Citizenship can be applied 5 yrs after getting GC and it may take another 5 yrs after that to get ur Citizenship. so r u asking people to wait 10 odd yrs with their employers after getting GC because u r aware of some law by which people can be taken to court as they quit jobs after getting GC?

Your post has a number of significant errors of fact in it.

First, it doesn't take five years to get citizenship anywhere in the US. Most places are taking between 6 and 18 months.

Second, there is no requirement at all that a GC holder stay with his or her sponsoring employer permanently. However, at the time that the GC is approved, there must be a legitimate intention on the part of the alien to work for the sponsor for an indefinite period.

INS and courts have held in the past that aliens who left their sponsor less than 60 days after their immigrant visa was used to the enter the US are presumed not to have this intent, and the burden of proof is on them. After more than 90 days, the burden of proof shifts to USCIS to prove that the alien did not have the requisite intent.

However, case law is perfectly clear on the subject - an alien must have intent to work for the sponsor in an EB scenario at the time permanent residency is granted.

1) people dont want to work in an environment but they should continue to work with GC sponsoring company for the fear that their GC/Citizenship may be revoked because of some USCIS law that u r aware of

People shouldn't quit right away.

2) people are asked to do some work which they are not enjoying
but they should continue to work with GC sponsoring company for the fear that their GC/Citizenship may be revoked because of some USCIS law that u r aware of

People shouldn't quit right away.

3) People want to advance their career but they should continue
to work with GC sponsoring company for the fear that their GC/Citizenship may be revoked because of some USCIS law that u r aware of

People shouldn't quit right away.

4) People are asked to do something which they cant[many IT jobs will have such examples in which learning new technology is a must and sometimes its hard to catch up with everything] but they should continue to work with GC sponsoring company for the fear that their GC/Citizenship may be revoked because of some USCIS law that u r aware of

People shouldn't quit right away.

5) People are not happy with their salary and not getting a raise but they should continue to work with GC sponsoring company for the fear that their GC/Citizenship may be revoked because of some USCIS law that u r aware of

People shouldn't quit right away.

R u asking such people to continue to work[5+ yrs ] because of case being filed against them by USCIS?

No one, least of all USCIS, is asking this.

 

[fast_gc_seeker]

Your post has a number of significant errors of fact in it.

First, it doesn't take five years to get citizenship anywhere in the US. Most places are taking between 6 and 18 months.

.

Where did u find that put from? Isent it true that Citizenship applications can be made only after 5 yrs of getting the actual GC? Most immigration attorneys say this. I've not read the entire guide to naturalization but
for those interested here is the link.


http://uscis.gov/graphics/services/natz/insfnl.pdf

Second, there is no requirement at all that a GC holder stay with his or her sponsoring employer permanently.
.

Wrong interpretation of my comments....

I never meant to say that somebody is supposed to stay for good with
GC sponsoring company.

However, at the time that the GC is approved, there must be a legitimate intention on the part of the alien to work for the sponsor for an indefinite period.
.

which USCIS law says this? Remember USCIS dosent makes labor laws
and USCIS laws are governed by labor laws.

However, case law is perfectly clear on the subject - an alien must have intent to work for the sponsor in an EB scenario at the time permanent residency is granted.
.

I agree with above but I believe labor laws govern immigration
laws when it comes to quiting of jobs. It will be extreamly hard to proove
in court that one has quit a job because he/she just got GC.

 

[pralay]

From which USCIS law u made ur conclusion? or its a law u assumed and are informing people? Wake up man show us some proof of ur comments and then people will start believing u.

It seems you live in binary mode (zero or one. or yes/no). That's why you either want to see "the law" and if the "the law" does not exists everything is "all right". Real world is kind of fuzzy. I changed my job, not because I saw "the law". But rather changed the job doing lots of plus and minus with lots factors - career growth with the new opportunity, salary, benefit/disadvantace of moving to a new place, potential job stability with new company and obviously the risk of switching the job from the viewpoint of immigration. Basically this risk was a factor in mind and considering all the factors I switched job. I think anybody just received his/her GC should consider this risk as a factor. No, how much weight should be put on this factor - that dapends on person to person (as I mentioned earlier).
"Intention" is subjective, but unfortunately burden of proof on GC holder to prove that - if situation araise. It's like speeding on freeway. Lots of people do speeding and many of them never get ticket. That does not imply that "rick of getting ticket never exists".

 

[fast_gc_seeker]

It seems you live in binary mode (zero or one. or yes/no). That's why you either want to see "the law" and if the "the law" does not exists everything is "all right".

I centainly do not live in binary mode. I wish the world was so easy to understand as binaries

The whole point is many people I know have quit after 485 approval
and they didn't had any issues later. ofcourse that dosent mean
what they did was correct or wrong either. I just post
my opinions from what I c and hear.

I'm not trying to flip flop on my earlier comments so...

 

[fast_gc_seeker]

It seems you live in binary mode (zero or one. or yes/no). That's why you either want to see "the law" and if the "the law" does not exists everything is "all right".

.

I centainly do not live in binary mode. I wish the world was so easy to understand as binaries

The whole point is many people I know have quit after 485 approval
and they didn't had any issues later. ofcourse that dosent mean
what they did was correct or wrong either. I just post
my opinions from what I c and hear.

I'm not trying to flip flop on my earlier comments so...

 

[TheRealCanadian]

Where did u find that put from? Isent it true that Citizenship applications can be made only after 5 yrs of getting the actual GC?

Yes, but what you stated was that one had to wait 5 years after permanent residency and then it may take another 5 yrs after that to get ur Citizenship (your words).

The five year wait (it can be more, based on breaks in continuous residence, but let's avoid that is there, but it doesn't take five years on top of the first five years. You can file the N-400 180 days before your five years are up, so in practice you should be sworn in 6-12 months after the 5 year period.

I never meant to say that somebody is supposed to stay for good with
GC sponsoring company.

No, you didn't, but you suggest that others were saying such a thing when you said so r u asking people to wait 10 odd yrs with their employers after getting GC because u r aware of some law.

which USCIS law says this? Remember USCIS dosent makes labor laws
and USCIS laws are governed by labor laws.

What you need to understand is that the whole EB system of immigration relies on intent. Intent is a common law principle that doesn't need to be enumerated in statute anywhere.

You don't get a Green Card by telling USCIS "I feel like living in the US permanently". You try that at a POE and they ship you right back to where you came from. You get an EB Green Card based on the principle that if you obtain permanent residency, you are going to work for a sponsor (or in a particular field for EA/OR/NIW). That's the condition that's implicit in any EB permanent residency.

You are correct in stating that the labor laws cannot force you to work. But labor laws are not immigration laws, and they cannot force USCIS to let you keep your Green Card, either. DHS will say, you do not have to work like you said you would, but since you didn't keep your end of the bargain, we don't have to keep ours, either.

I agree with above but I believe labor laws govern immigration
laws when it comes to quiting of jobs. It will be extreamly hard to proove
in court that one has quit a job because he/she just got GC.

Labor laws do NOT govern immigration laws in areas of immigration, and intent is not a question of law, it's a question of fact. If you quit a job 60 days or less after the granting of permanent residency and USCIS claims that your intent was not bona-fide, the onus will be on YOU to prove them wrong.

That's the established case law.

 

[pralay]

R u asking such people
to continue to work[5+ yrs ] because of case being filed against them by USCIS?

Don't read between the lines. "Intention" is very subjective and will differ with each individual case. Therefore, everyone has to use his/her own judgement to take decision. Someone can switch job within two months and still he/she can have a good case of prove that he/she had clear intention to stay with sponsoring employer.

 

[pralay]

I agree with above but I believe labor laws govern immigration
laws when it comes to quiting of jobs.

Actually neither. Labor and immigration law are totally independent and does not interfere. None of them govern each other. When it comes to employment of aliens (immigrants), the immigration status (employment/GC or whatever) is always conditional and fairness of labor law is not good enough to keep this status. Otherwise, we would have got our GC right after LC approval (skipping I-140 and I-485).

 

[pralay]

what about following cases?

1) people dont want to work in an environment but they should continue
to work with GC sponsoring company for the fear that their GC/Citizenship may be revoked because of some USCIS law that u r aware of

Well...legally? Look at the other side of coin. If an employer A thinks that they need employee X for "long term" (or "permanently"), they will apply for LC and I-140 for him/her, as employee X showed intention to work for them for "long term". Now, when employee X gets green card, he/she can say "When I agreed to work for you, I was just joking. I won't work for you. your working environment is not good". That destroys the whole premise of EB green card. If employee X really did not want to work for employer A, he/she should have told employer A about that, abandon that GC process and then look for employer B who has "better working environment" and willing to sponsor his/her GC.
But whatever I mentioned above is a story of pure legal matter.
Again, real world is fuzzy and we all are little bit dishonest about it. Most of us get pissed off with our employer often and most of us think of switching job once in a week (if not once in a day) - even before getting GC. Most of the us think "after getting GC I will look for a better job" - because GC will provide better leverage to bargain salary, perks etc. Everything is fine and labor law good enough for us too. But the problem can araise if USCIS comes back and say "you did not have intention". Will the "bad working environment" argument be good enough in immigration court? I don't think so. I am not suggesting that there is good chance that USCIS will take you or me to court. But it's just a worst case scenario - like getting ticket in freeway.

So, on your all five questions, the true legal answer will be (not my own personal answer):
Employee (or future employee) should not file I-485 for the desire of obtaining green card if he/she is not sure that he/she is going to work for sponsoring company. He/she should start another fresh new GC with another company where he/she wants to work after getting GC. Or in fact AC-21 can allow him/her to change employer BEFORE I-485 approval.

 

[fast_gc_seeker]

Yes, but what you stated was that one had to wait 5 years after permanent residency and then it may take another 5 yrs after that to get ur Citizenship (your words).

.

Canadian, wrong interpretation of my comment... I repeat what I meant and
its from what I've seen and heard...

One can apply for citizenship 5 yrs after 485 approval. I'm not
aware of filing N-400 180 days before post five years of GC are up[no comments on it]

I would also like to clarify my comments on labor laws and immigration laws.
I meant to say "when it comes to quitting of jobs [post gc], it will
be hard to proove using immigration laws that the quit is just
as result of GC and it can be prooved that quit is based on freedom
given by labor laws for every individual to work at anyplace without
restrictions" . This comment is in par with pralay's comments on real world being fuzzy.