Laid off because of delays in Green Card processing

[rvshravan]

My wife currently has her I-485 pending under the EB2 category and her priority date is August' 2005. She was hired last year.

My wife got laid off recently. The reason given by her employer is - she didn't have her green card. He said he assumed she will get her green card soon based on the current date and her priority date. Now the employer doesn't have any work that can be done by non-green card person.

I have two questions:
1. Can lack of green card be a valid reason for laying off someone?
2. Can the green card processing be expedited because of her situation?

Thanks in advance,
Shravan

 

[nkm-oct23]

Unless the work requires export control, the employer cannot fire a person simply because he/she doesn't have a green card. Does your wife have a valid H1 with the company or a valid EAD?
No, there is no way to expedite her green card - she has to wait for her turn in the line.

 

[Jackolantern]

My wife currently has her I-485 pending under the EB2 category and her priority date is August' 2005. She was hired last year.

My wife got laid off recently. The reason given by her employer is - she didn't have her green card. He said he assumed she will get her green card soon based on the current date and her priority date. Now the employer doesn't have any work that can be done by non-green card person.

1. Can lack of green card be a valid reason for laying off someone?

Only if by law the work requires being at least a permanent resident. But there is almost nothing like that. If a job doesn't require US citizenship, chances are 99.99% it can be done by people with an EAD as well as permanent residents. What kind of work is this?

Firing for that reason could be illegal employment discrimination. She should see a lawyer. If the employer is in the wrong, she could sue the employer and get tens of thousands of dollars. Meanwhile she needs to look for another "same or similar" job ASAP so she can keep the I-485 alive with AC21.

This could be a situation where the employer thinks green card = citizenship (yes, many Americans are ignorant like that), and the employer does government contracts that require citizenship. In which case having a green card still wouldn't enable her to do that work.

2. Can the green card processing be expedited because of her situation?

No. But if she in in EB2 ROW, which is current and has been current for a long time, she can file WOM to expedite it. However, she would still need to be hired back into the old job or find another AC21-compliant job.

 

[rvshravan]

Thanks a lot for the response.

I am not sure if her work requires export control. The employer had some commercial contracts and some government contracts. She was working for the commercial projects till now. But apparently, they are done with the commercial contracts and now have only government contracts. So they had to let her go.

My wife has an EAD because of her pending I-485. She filed her I-485 as a derivative spouse. I have my green card.

Thanks,
Shravan

 

[rvshravan]

Only if by law the work requires being at least a permanent resident. But there is almost nothing like that. If a job doesn't require US citizenship, chances are 99.99% it can be done by people with an EAD as well as permanent residents. What kind of work is this?

Firing for that reason could be illegal employment discrimination. She should see a lawyer. If the employer is in the wrong, she could sue the employer and get tens of thousands of dollars. Meanwhile she needs to look for another "same or similar" job ASAP so she can keep the I-485 alive with AC21.

This could be a situation where the employer thinks green card = citizenship (yes, many Americans are ignorant like that), and the employer does government contracts that require citizenship. In which case having a green card still wouldn't enable her to do that work.

No. But if she in in EB2 ROW, which is current and has been current for a long time, she can file WOM to expedite it. However, she would still need to be hired back into the old job or find another AC21-compliant job.

I know that the work is government-related. However, I don't know if the work needs US citizenship.

She is in the EB2 row, but that is not current as she is from India.

Getting the job is not an issue, since her I-485 application is just a derivative application of mine. She has an EAD because of her pending I-485.

In your reply, did you intend to say that there is no difference between an EAD and a green card when it comes to what work you are eligible to do? I wasn't aware of that.

Thanks,
Shravan

 

[TheRealCanadian]

In your reply, did you intend to say that there is no difference between an EAD and a green card when it comes to what work you are eligible to do? I wasn't aware of that.

99.99% of the time, there is no no difference.

 

[Jackolantern]

She is in the EB2 row, but that is not current as she is from India.

When people here write EB2 ROW, they mean EB2 Rest Of the World. So she is EB2 India, not EB2 ROW.

In your reply, did you intend to say that there is no difference between an EAD and a green card when it comes to what work you are eligible to do?

Correct, with rare exceptions. The only exceptions I can think of right now are the US military, and jobs where US citizenship is normally required but they hire permanent residents who have already applied for citizenship or pledge to apply for citizenship by a certain date.

The employer had some commercial contracts and some government contracts. She was working for the commercial projects till now. But apparently, they are done with the commercial contracts and now have only government contracts. So they had to let her go.

If those government contracts require US citizenship for the people working on them, then it is true that she cannot work on those contracts. But if US citizenship is required, having a green card still wouldn't enable her to work on them anyway. So if US citizenship is the issue, the employer is ignorant of what having a green card means. And if US citizenship is not required for those contracts, chances are 99.99% that a green card isn't required either and an EAD would be sufficient.

 

[nkm-oct23]

Sometimes export controls come into play - an export license is required before disclosing any such information to a non US person. Even non-technical jobs like purchasing require export control if the product or service they are dealing with is classified as such. Even looking at product specifications might require an export license in such cases.

GC holders are considered US persons and do not need any separate export control clearances. Since many of government contracts fall under export control, your wife was let go in the absence of a green card.