Laid off less than 180 days

E

eadwoes

Registered Users (C)
Hi All:

My first post, so go easy if I am flouting any rules. I have read through some threads which are about similar situations as mine. But I thought of sharing my own case with you guys regardless.

My I-485 was filed in May (RD: May 9) and I have my EAD Card. My project got over in August and on Sept 2nd, my employer told me that my employment will be terminated on Sept 15th (with 15 days' salary; paid till Sept 15th). I have been sent some papers to sign, waiving the rights to sue them in future. My employer is nice and says that they will not revoke my I-140 or affect my GC processing in any way. Also, that they will search for a project for me (like usual) and will re-hire me as soon as something is found. My status with the employer has not been adjusted and is still H1.

Now, those of you good with math :) will notice that I have been laid off short of 180 days. And I have been told repeatedly (including in this forum) that it will not have any adverse impact on my GC. But what I do from now on, may (have some effect). So I am being extra careful.

I have several options in front of me:

1. Find a project and get re-hired by the same employer. This is the best one and I do fancy my chances here. But, it will be a new job (even though with the same employer). Will it affect my 180 days issue? I think not. But anybody know anything different?

2. Failing [1] above, spend two more months on bench without salary and switch employer after Nov 6th (180 days from RD). Question is, what do I need to do after/during this process to be on the right side of the law. Do I need some letter from my current/old employer? Do I get a new lawyer? Do I file AC21 myself? I understand the job profile should be the same while salary can be different. Any FAQ that someone has compiled on this will help. Otherwise I would be asking alot of newbie questions as I come closer to doing this.

3. Are there any other options? I read a few posts that suggest finding a new job before 180 days is also going to be okay. Maybe an RFE at worst. So maybe thats an option. It will increase my chances of finding a project manifold. But there are other alternatives too. What if I start working on 1099? My new company will file my taxes starting September/October. So it will give away the less-than-180-days fact. But will BCIS know? Or care?

What if I work a second job? (I do realize that my first job is gonna be extinct in a few days so second job has no meaning.)

Also, can I start a company (I know I can do that even on H1) and work for it on my EAD? Ca I do that before 180 days?

How about finger-printing? I have not had it done so far and people tell me that I should be getting the request anytime now. Will it affect my situation?

Any comments are welcome. Thanks very much.
 
Clarification first: You said "My status with the employer has not been adjusted and is still H1."

So you haven't filed I485 yet?
 
Yes my I-485 has been applied. In fact I have received my EAD card too. But my employer is supposed to file a form (I-9, I think) which I was asked to fill and fax. But I am told that they have not filed that yet. So I do not work for my employer on EAD but on H1 still. The HR person said that they will not be filing it till the time my H1 expires which is early next year. Don't know why (maybe it costs them money) -- but that is what I know.

Thanks.
 
To answer my own question

I have done some more research and seen the Shusterman chat transcript too. They seem to be pretty clear on the 180 days rule. They seem to believe that one can switch jobs before 180 days (and "switching" includes leaving and joining) without any adverse effect on the GC process (provided I-140 is not revoked till 180 days).

I know the same opinion has been expressed on this board by some members but when it comes from an attorney, it carries some more weight. :D
 
One more option ?

If I were you, I would ask my employer to continue paying salary till 180 days of filing I485 and I would re-imburse them in another way. Saves the worry later ...
SDD
 
Unfortunately it is not a small company and consequently not as flexible. I even offered to go on unpaid leave but the HR manager said no to that.

Thanks for the idea, though.
 
Make sure that...

you ask your employer not to revoke your H1. As if they revoke your H1 and do not revoke I-140, there might be some conflict in the future because your H1 is revoked and you did not switch on EAD so technically you can not work with the employer legally.


Good Luck

Noknurd
 
eadwoes,

As far as I know you may not be able to start a company and work for the same using your EAD.

Try to consult with an attorney for all your questions. You can try with Rajiv (this web site), Sheela Murthy (Murthy.com) or someone at usvisanews.com. It's worth paying the money for consultation with such attorneys.
 
You need an employer to continue your GC. 1099 won't work. My two cents is get on with life. Look for another job, renew EAD.
 
Not sure of this is relevant to the original poster. but I am contributing here for the benefit of others.

To answer all your questions and options:

Option# 1 is obviously the best one. No effect at all in your GC processing. Even if INS asks for proof of employment, all you need are current pay-stubs.

Option# 2 is feasible.
* Check your finances.
* You will need an employment letter from your new employer, just like the one you filed with I-485.
* Nothing needed from old employer.
* You can change lawyers at any time, just make sure the INS knows about this. You can also elect to file the AC-21 docs yourself. If you need help with AC-21 docs, let me know.

Other options?
* You can get a new job, have them do your H1.
* You can go to work using your EAD, IF the card has no restrictions on it.
* Regardless, make sure that the job classification on your approved I-140 is the same as the new job.
* If you are married, and your wife works on an H1, you can convert to a H4 visa. However, this will effectively kill your GC process.
* 1099 is not an option for you.

Work as many jobs as you can on your EAD. Follow the law for AC-21 benefits.

Starting a co etc, please check the rules on this. This is a very complex area, and I am not aware of all the rules here.

As long as you are within the law, FP should come along soon enough.
 
Thanks objviv

Thanks for your detailed response. I found another project through another company (B) and did a corp-to-corp through my employer (A) so I guess option 1 worked for me. I have been re-hired by the same employer and started in the new project too.

The problem is that the rate is a little low so I had to take a paycut. Also company B is paying more than they want to my employer so they wants me to join them directly after my 180 days. And I am not sure if that is such a good thing. My friends tell me not to switch jobs unless I have to.

Anyways, I guess I will worry about it after Nov 6th. :)
 
Disclaimer: I am no attorney, anything I say in this forum are just my opinions and/or personal experiences and not legal advice. I assume no responsibility if you do anything written here. I am just trying to help! :)
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Ok, got this out of the way. Whew!

...friends tell me not to switch jobs unless I have to.
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That is good advice in general, in terms of protability under AC-21, if the letter and spirit of the law is maintained, it is meant to NOT tie a person to an employer, for otherwise undesirable consequences result, like having to take paycuts.

That was the whole point of why people like me fought this battle at Capitol Hill all of 2001.

Bottomline, the law allows you to switch, subject to certain rules and conditions, and not lose your GC process. I have done it, not once, but twice and done it successfully; got my GC in June of this year.

Now the most insidious aspect of your situation:

Your employer A, with whom you are now working again, deserves to be bushwhacked in Labor court, if you have evidence that you are now being paid less than what your Labor Certification petition originally said. If indeed you are now being paid less, then this behaviour by Co. A is not only illegal, but unethical. You will very likely get each and every penny that you are owed, plus the company will be liable for heavy fines etc. if you choose to report them to the DOL.

You should speak to a lawyer.
 
"...Your employer A, with whom you are now working again, deserves to be bushwhacked in Labor court, if you have evidence that you are now being paid less than what your Labor Certification petition originally said. If indeed you are now being paid less, then this behaviour by Co. A is not only illegal, but unethical. You will very likely get each and every penny that you are owed, plus the company will be liable for heavy fines etc. if you choose to report them to the DOL."

As far as I know, the salary stated on the labor cert applies only when you get your GC. By the way, I feel it's more unethical at employee's side if the employee is bringing the company to the court while it seem like the company is trying to help the employee out.
 
Originally posted by lkianbe
As far as I know, the salary stated on the labor cert applies only when you get your GC. By the way, I feel it's more unethical at employee's side if the employee is bringing the company to the court while it seem like the company is trying to help the employee out. [/B]
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Thanks both of you for your inputs. But as I look at it, they are neither helping me nor otherwise. They are in it for the profits and I found a project where they would not have made much profit. So they basically bargained the heck out of the middle-man (company B) and then squeezed every penny out of my salary so that their profits are what they were. I ended up getting a 10% paycut and the middle man ended up paying a little extra hourly. My employer has not done any charity exactly. Their profits are what they were. They would not have let me work here unless it was so (and they said as much to me).

So, no one is doing anyone a favor in this situation.
 
Originally posted by objviv
That was the whole point of why people like me fought this battle at Capitol Hill all of 2001.
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objviv

Can you please elaborate about this? Like how it was handled. People are trying to speed up the I-485 approval rate. You inputs may help them or you may lead the charge.
 
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Disclaimer: I am no attorney, anything I say in this forum are just my opinions and/or personal experiences and not legal advice. I assume no responsibility if you do anything written here. I am just trying to help! :)
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lkianbe,

WRT the salary stated on a labor cert, you would be right if the labor certification petition for the green card is for an intended employee, in which case the petition and the subsequent I-140 would state so.

For a current employee, for whom a labor certification is being filed, the employer must testify among other things that that person will be employed by them at such and such salary. This testification is legally binding.

WRT your other comment, all I can say is that its the lack of knowledge of current law that allows unscrupulous companies to take advantage of people. As 'eadwoes' pointed out, the company is hardly doing him a favor.

Knowledge of and compliance with the law is everyone's duty; knowningly being a part of a criminal behaviour is itself a crime. When tomorrow an unscrupulous company brings a minimum wage employee from China, India or wherever and kicks you out of your job, you will surely know what unethical and illegal behaviour is.

Sorry for the personal jab, lkianbe, but attitudes like yours make me sick!
 
tammy2,

What can I tell you about the so-called battle? Sorry if I sounded grandiose, but thats what it amounted to on Capitol Hill especially when you come across an aide who says the usual nasty things about immigration.

Suffice it to say that it was a long and hard fought battle, taking several months and a detailed strategy and plan.

Please write to me offline, at vivekkhanna@hotmail.com and we can discuss.
 
My understanding:
All EB green card applications are for future employment. All these (position, salary) will apply on what is intented in the future employment. Can anyone clarify this?


objviv,
I thought my opinion in addtion to yours was just a reference for eadwoes for his/her case. I didn't mean nor had any intention to oppose or attack your comments. But if you took it that way, sorry, that's too bad. ;)
 
I am not, nor was, personally offended. :)

I absolutely hate it that people get run over by companies cause they are so keen to get GCs. In this process, we ALL get hurt sometime or the other.

The law is meant to create a system which is fair to all, sure it does not work out that way all the time, but our ignorance only makes things worse for us.

WRT eadwoes, his co clearly took advantage of the fact that he does not yet have an approved I-485. The law allows him to move to a new co. If he does not want to do so, does that mean the company should take advantage of the situation?
 
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