laid off in 100 days after filing I-485

V

vijaynathg

Registered Users (C)
Hi guys,

I really really need your help in this regard. I filed my I-485 this April 15th 2003 and I just got the news that I got laid off. I am given 3 more months of time before I move on. Which means technically 100 days would be over from the time I filed my I-485. But still I am short of 80 days to be able to use the AC21.
I have also applied for for EAD and AP along with 485. So what options do I have now.

1. Just get into another job with another H1 and start hoping that I dont get a query from INS regarding to my I-485.

2. Or start using my interim EAD and jump into another job. What problems could I face.

3. Or is there anyother paper work I can start working on from the present company so that I some how manage to cross the 485 stage.

Please give me some options so that I can work on this. As I am still with the company for 3 more months, depending upon u guys suggestion I will follow accordingly.

Please take some time out and give me some suggestions.
 
I had a friend that has similar case as yours; he explained his situation to the company, and they agree to keep him until 180 days with the combinations of the pay cut, and actually doing something else but keeping his job title. After 180 days he joined another company.
Maybe if you can convince them to use leave of absent till 180 days and then lay off.

Good luck
 
http://www.murthy.com/UDac21qa.html#2

Question 2 : I lost my job before the 180-day period. Can I still use portability?

Quite possibly, provided the I-485 remains in pending (unadjudicated) status for at least 180 days. It is the I-485 processing time that is important, not when the beneficiary changes positions.
 
vijaynathg,

First of all, extremely sorry to hear about the loss of job.

Secondly, you are going to be one of those rare people who hope that INS takes longer than 6 months to process your application.

To answer your questions:

1. Just get into another job with another H1 and start hoping that I dont get a query from INS regarding to my I-485.

I strongly doubt you will be hearing anything from INS for the next 6 months. Technically, if INS takes longer than 6 months to process your application, you fall under the AC21, and can change jobs without any repercussions. You don't need to inform them when you change jobs, but only at the time of RFE. Remember at the time of RFE, you need atleast 6 pay stubs and need to be earning the same salary at a job similar to the description on your labor.

2. Or start using my interim EAD and jump into another job. What problems could I face.

None! Start looking for a job right now with H1, then whenever you are eligible for iEAD, go ahead and get it. That way you have more options in your job search.

3. Or is there anyother paper work I can start working on from the present company so that I some how manage to cross the 485 stage.

There is no other paper work you need right now from your company.

Please give me some options so that I can work on this. As I am still with the company for 3 more months, depending upon u guys suggestion I will follow accordingly.

Here is a list of things that if you get will be very helpful:
1. A letter from your boss on company letter head stating that if you get your green card, they will/could/might (depending on your relationship with your boss) hire you.
2. A copy of the I140 approval.
3. I485 receipt.
4. A promise not to revoke your I140 under you for the next 6 months.

The above points should clear you from most circumstances. Get a good lawyer behind you. That will help you greatly in your case.

Good luck to you.
 
Hi, 140_takes_4ever:

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Here is a list of things that if you get will be very helpful:
1. A letter from your boss on company letter head stating that if you get your green card, they will/could/might (depending on your relationship with your boss) hire you.
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Is this letter you mentioned from the boss in the company I filed I-485? If I will get RFE, can I get a letter from the new boss? I'm in same boat with Vija.

Thanks!
 
Sorry to hear this bad news

My friend got similar situation, but his company promise to keep
him without pay and don't file cancellation for his I140 approval.
Now 180 days was over. He will start another job with EAD.
If the company don't file cancellation for your I140 approval
in the first 180 days after I485 pending, the company could not
be allowed to cancel it later. So you would ask your company
assistance for this part.

One guy on this board got REF during unemployment, he filed
delaying giving REF to INS. Later he got job and submitted REF
to INS. Finally, he got I485 approval.

Not sure another H1, but maybe affect your I485 pending.
You asked some attoney about that. If you use EAD for another
job after 180 days, you should have problem no matter what.

GOOD LUCK.
 
Well, that's one way of interpreting wording of the law. Until the final regulations are published no one will be able to tell for sure.

However a layoff before 180 deadline is usually considered to be fine for purposes of AC21 (as opposed to a voluntary job change), the best way to play it is to strike a deal with your current employer to keep you on their payroll until 180 days come to pass.

In my belief, generally it would not be considered as a fraud (as opposed to a sham employment offer letter).

On the other hand, there is not much choice left, so these 3 months you have been generously given are better spent searching for a new job. As long as you have a job, there is hope for a positive outcome.

Choice of H1-B or EAD is not clear. I would prefer H1-B, of course. But this option may not be viable if there will be a gap in between your current and next employment - H1-B transfer may not be possible and to apply for a new H1-B will take time. Taking off on EAD will require annual renewals for EAD and AP, which is a major pain at this time.
 
Originally posted by Celina
Is this letter you mentioned from the boss in the company I filed I-485? If I will get RFE, can I get a letter from the new boss? I'm in same boat with Vija.

Thanks!
Click to expand...

Celina,

That letter is just to cover all bases. If you have a new job where you can produce 6 or more pay stubs then you don't need to really bother about it. Like I said it is just to cover all bases in case someone cannot produce 6 pay stubs etc.

The main purpose of the letter is because GC is for future employment and not current so therotically, if you have promise of job, you should be given your GC. Hence the letter.

But like I mentioned earlier, if you have 6 pay stubs etc. to reply to an RFE, nothing like it. Just sit tight under AC21 and you will swing through.

In the current economic situation, I wouldn't want to be in the position of a H1 looking for a job. The market is extremely tight and any job fair you go to will have huge banners proclaiming H1's need not apply. Plus EAD gives you the flexibility of working two jobs concurrently, etc.

I don't think renewal of EAD or AP is a problem, all you have to do is be smart about it. Apply for renewal atleast 90 days prior to expiry of EAD, that way even if your new EAD doesn't arrive you can always go for iEAD, besides EAD's are usually back dated, so according to some lawyers, simply filing for an EAD is good enough as long as you don't change jobs, an iEAD is required only if you plan to change jobs. Offcourse you will need an AP to travel.

This discussion will get much better replies and answers if it is posted in the 485 portability thread where it belongs.
 
Thanks! I worked for the new company for a year already. I didn't apply for EAD and AP, I'm still using my H-1B...
 
vijaynathg:

Somewhere I read. It doesn't matter if you change job before
or after 180 days. Only condition that I-485 is not
adjudicated before 180 days. It doesn't matter when you change job. You need not to hang around for 180 days with the present company.

Get I-140 approval letter for safer side. Ask your company not to revoke I-140. Use EAD to get a job. Wait for 180 days. Notify INS regarding change of job explaining clearly AC21. This is upto your discretion. Not compulsary according to INS.

Careful about paystubs and employment letter. This might be a problem only when you get RFE. Also if they call you for interview, they might ask for tax returns for the last two years. Safer to make sure your tax return income closely matches the salary mentioned on LC.

These are my suggestions.
 
Sorry to hear about your job.

But these are things that you might need to do... ask your current employer (who is processing your GC) not to revoke your I 140 or I485 petition. After the 180 days is past they can inform the INS that you are no longer with them. Technically they can revoke your I 140 before the 180 days...

The good side of your case is... INS will not be looking at your case for atleast another 8 months.

good luck!!!
 
Hi guys, thanks for all your suggestions. I just got another idea not sure how good it is.

Since I have 3 1/2 more months before I will be laid off, so I am thinking I will try to get an interim EAD after 90 days, and will update the HR with the EAD information, so technically I will be on EAD and come my date, I will leave the company. So since I am already on EAD, does it make sense that no matter the 180 days have not crossed, since I was laid off rather than I voluntarily changed the position, does this strengthen my case,

I mean usually lets say, I did not know that I will be getting laid off and in 90 days once I get my iEAD I updated the HR and got into EAD status, and unfortunately in the next few days before hitting the 180 days, I was laid off. So I feel it was not my mistake, so I will search for a new job with my EAD and start working. Come RFE, do I qualify to state to this is what happened so I had no alternative.

I really wanted to know if it makes sense if I get into EAD asap or just keep my H1 intact and do a job tranfer on H1???

Please help!!!!
 
Originally posted by vijaynathg
Hi guys, thanks for all your suggestions. I just got another idea not sure how good it is.

Since I have 3 1/2 more months before I will be laid off, so I am thinking I will try to get an interim EAD after 90 days, and will update the HR with the EAD information, so technically I will be on EAD and come my date, I will leave the company. So since I am already on EAD, does it make sense that no matter the 180 days have not crossed, since I was laid off rather than I voluntarily changed the position, does this strengthen my case,

I mean usually lets say, I did not know that I will be getting laid off and in 90 days once I get my iEAD I updated the HR and got into EAD status, and unfortunately in the next few days before hitting the 180 days, I was laid off. So I feel it was not my mistake, so I will search for a new job with my EAD and start working. Come RFE, do I qualify to state to this is what happened so I had no alternative.

I really wanted to know if it makes sense if I get into EAD asap or just keep my H1 intact and do a job tranfer on H1???

Please help!!!!
Click to expand...

In my opinion, it hardly matters if you update HR with interim EAD information before the layoff. Arguing that you did not know about the layoff in advance is a moot point. But arguing that the company laid you off because of the current market situation, is good and may not constitute a cause for I-485 rejection even if the 180-day rule applies to the job duration, not the length of adjudication. As far as my memory serves, CSC was lenient to petitioners who were laid off before 180 days.

Again, until final regulations are published governing procedures of adjudication of AC21 cases, no one will be able to tell for sure if something is "right" or "wrong" in your particular case (other than the well-known factors not related to AC21). Until then, it will all depend on the officer who picks up your case and your lawyer to guide you through interaction with INS (responding to RFE's and helping on an interview).
 
Vijay,

I am also in favor of getting EAD as soon as you complete 90 days and since getting iEAD with having a job in hand is much easier and keep working on H1 so that your H1 will remain valid but if you use your EAD then your H1 will become invalid and you will loose one option (may be it is worthless) but why to loose it ?
Start searching job now it self and mention don't need H1, For new job you will have two options one H1 transfer and EAD, but if you loose your H1 then you have to file new H1 and it will not be H1 transfer.
 
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