Jiml. Martha... need ur advice please

S

sniyer

Registered Users (C)
I have filed for 140 on oct 24th, RD nov1st, ND nov 9th 2001 at California.

The file got transfered to Vermont ( as my home address is in virginia)

The above process is for a future job with a friend\'s company.

I am working with company A on h1 and now i will be laid off from dec 14th. but the HR has agreed to give me a without pay leave for a month and then start the severence pay by splitting it into 4 pay checks . my last pay stub would be on feb 14th 2002.

Questions:

Am i supposed to be in status till feb 14th 2002?

assuming my 140 comes thru succesfully, can i go ahead with 485 in the meanwhile?

any help would be appreciated..

are there any other ways to keep me on h1 status till my 485 is filed.

thanx
 
sniyer,

I\'d love to help you but this is over my head.
Here are a few thoughts:
Since your case has been transfered to VSC, this may cause a delay in its processing. Let\'s hope not!
Is there any way that you could join your friend\'s company in February?

Your questions:
Q1 Am i supposed to be in status till feb 14th 2002?
A1 I believe you supposed to be in status all the time while processing your GC if you are physically present in the US.
Or you could be waiting abroad until your GC is processed.

Q2 Assuming my 140 comes thru succesfully, can i go ahead with 485 in the meanwhile?
A2 I am not familiar with 485 but I think that you need to be working if filing AOS.

In the worst case, if you cannot keep your H1 status, you could go back home and do Consular processing, which is taking only 3-6 months, depending on your particular consulate.

Sorry that I cannot be much of help! Anybody has a better idea about this???
Good luck!

Marta
 
sorry for complicating the case...here goes a simplified version

1. Filing GC through company A .. based on future job. 140 filed and pending. expecting approval sometime in jan 2002.

2. working with Company B ( on valid h1). They are planning to lay me off this friday. dec 14th. i have asked them to keep me on payroll but without pay for a month and then start the severence pay to be given as a pay till feb end 2002.

Q1. Does this mean i am in status till feb 2002?
q2. if i find a job, can i transfer h1 from company b to the new company without any problem?

q3. if my 140 gets approved thru company A before feb end 2002, can i still process 485?

thanx
 
yes..

i can join my friend\'s company anytime... if it has to happen before the 485 and EAD.. then i have to spend on a new h1 transfer.

do u think it would be safer to take this approach?

Q1: what i meant by that question was... by getting a delayed paystub and going on vacation without pay, will i be in legal h1 status? or does it amount to me not being in status if i go on leave of absence with out a pay.
 
No Title

I think you need a good lawyer. I do not want to give you some of my guesses. You need somebody who is really qualified.

Generally, you are out of status on the day of lay-off. However, there might be some other ways. I believe if you find a new job in 30-60 days you can do a transfer.

Good luck!
 
sinyer,

I found the following at www.grasmick.com:If you lose your job after the I-485 is filed, you were never out of status. There is no obligation for you to be employed at any stage of the I-485 process, only that you start work with your sponsoring employer at approval, or at approval be employed in a similar job.

Look into this!
 
No Title

I also found from http://www.shusterman.com/
180 Day Portability Rule: Clearing Up Common Misconceptions

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 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. INS\'s Policy Memorandum regarding AC-21, dated June 19, 2001, provides, on page eight, that "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 I-485 applicant notify the Service when they no longer intend to enter into employment with the employer who sponsored them on the I-140 petition. The Service should continue to expect the applicant to submit a letter to the INS of this change of intent... The Service should request a letter of employment from the new employer..." In practice, an applicant who changes jobs after the I-485 has been submitted should send both letters to the INS by certified mail.

Hope this helps a bit!
 
Adjusting Status

Since you have a pending I-485 you are in adjusting status (it doesn\'t appear that you\'re maintaining your H-1 status so that may be gone). You can remain in the US as long as your I-485 is pending but the issues are travel and work. To travel overseas you will need advance parole and to work you will need EAD.

That brings us to the I-485 portability issue. I\'ve explained the way I see the issue many times but today I ranted again at Jim M "180 Day Portability rule - Article from Current Issue of Carl Shusterman - Comments PLS" 12/13/01 10:10am. Since the GC is for a future position you may be ok but INS will probably question your intent if you never work for the sponsoring employer. There are no clear regulations though so who knows?

My advice is file AP and EAD, get a new job, and hope for the best.

Jim
 
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