Laidoff !! need advice ..

[s66v]

Hi,

I would appreciate your opinions. My husband was on H1b, but got laid off two weeks back. I passed my citizenship (N400) interview last week but had no oath since the Name check was pending. We already have a I-130 approved for him through me (PD is not current). We were banking on my citizenship to file for his adjustment of status (I-485), but I'm legally not a citizen yet.

He has not been able to find job till now and we are getting increasingly worried. If he's not able to find a job soon, does he need to go out of country ? Is there anyway he can file Adjustment of Status through me before I take oath? Is there any other visa he can change to ?

thanks,
Priya

 

[TheRealCanadian]

He has not been able to find job till now and we are getting increasingly worried. If he's not able to find a job soon, does he need to go out of country ? Is there anyway he can file Adjustment of Status through me before I take oath? Is there any other visa he can change to ?

Your husband has been out of status for two weeks now, and there is no way that he can file an I-485 yet, since you are not a citizen and the PD for his I-130 is not current. With that said, for him to the leave the United States now would be unnecessary and lead to a separation of several months, as well as considerable expense.

I would suggest that you work with your local US Representative or US Senator in order to get the Name Check out of the way and get your oath scheduled. Once you become a citizen you should immediately file an I-130/485/131/765 package for your husband, and he will be back in legal status. Since you will be a US citizen at the time, his out of status period will be forgiven without penalty.

The only potential wrinkle is if he passes the expiration date on his I-94 before the I-485 is filed. At that point he starts accumulating illegal presence towards the 3/10 year bars, although he will need to accumulate 180 days' worth before they kick in.

 

[s66v]

hi

Hi RealCanadian,
Thanks a lot for your reply. I'm a little confused between being 'out of status' and being 'illegal'. What is the difference between the two? Can he also be deported if he is out-of-status ?

His H1B approval and also the I-94 dates are valid till next year June (2007). I thought that the illegal presence starts accumulating from the day you are laid-off. In case he is not able to find a job in time, does his illegal presence start from June 2007 and beyond and not before that ?

We were hoping that he does not have to leave the country, otherwise there would be lot of problems for us. However we dont want him to be arrested or deported or banned for 3 years. We would certainly try to contact senators to get the name check resolved. But its been only a week since the citizenship interview. Do we need to wait for 120 days before we contact the senators ?

thanks,
Priya

 

[dumok]

some info

Your husband had an H1 status. He lost his job and his status (H1) the same day he was laid off. (Or may be next day, don't remember the details but you could search on the Net). Your husband is out of status.

Your husband is legally present in the US. He had not crossed the boarder illegally. He was inspected by the immigration officer at the port of entry when he entered the US and was given I94 form.

Your husband lost his status but he is legally present in the US while his I94 is valid (till next year June.)

If he finds a job within 2-3 months after being laid off (do not know whether or not 4-6 months would work), and files his papers to get H1 "transfer", USCIS might "forgive" his out of status presence and grant him H1 status ("transfer" his status to another employer.)

Hope it helps

 

[s66v]

hi

thanks dumok. So from what I understand my husband would be out-of-status till june next year, if he does not get a job. Can he be deported for being out-of-status ?

Also if I become a citzen before that period, then can we file his I-485 adjustment of status ? But since he is out-of-status, how can his status be adjusted ?

thanks,
Priya

 

[EricS]

The best way to stay legal is to find another job, but if that is not happening, another way to keep the H1 valid is to find a consulting company that is ready to transfer the H1. They will also help find a ( consulting ) job. If you do not know any such company, let the forum know and the users can suggest you some good (consulting) companies. This way his H1 status will be maintained.

As you are stuck in the name check, so it is hard to predict how much more time it will take before it is cleared. So I would suggest one more thing, once he files for H1 transfer, also apply for his labor certification for an employment based greencard. This will help him extend his H1 beyond 6 year limit if required.

 

[TheRealCanadian]

Can he be deported for being out-of-status ?

Theoretically yes, but ICE doesn't go around deporting laid-off H1 holders with any regularity. I wouldn't be worried.

Also if I become a citzen before that period, then can we file his I-485 adjustment of status ? But since he is out-of-status, how can his status be adjusted?

Yes. I'd file a new I-130 as an Immediate Relative, and the I-485. Since it is an IR-based I-485, the fact that he is out of status is irrelevant. He could be out of status for 20 years and still be OK.

 

[s66v]

Hi

Theoretically yes, but ICE doesn't go around deporting laid-off H1 holders with any regularity. I wouldn't be worried.

Yes. I'd file a new I-130 as an Immediate Relative, and the I-485. Since it is an IR-based I-485, the fact that he is out of status is irrelevant. He could be out of status for 20 years and still be OK.

We have already recieved approval for I-130, but the PD is not current. So we would just need to file I-485. right ?

Also can you tell me When do the 180 days start accumulating ? after I-94 expiry or after being laid-off ?

Is it a good idea to apply for conversion to F1/B1 ?

thanks,
Priya

 

[TheRealCanadian]

We have already recieved approval for I-130, but the PD is not current. So we would just need to file I-485. right ?

In theory, yes, but I don't trust USCIS (more specifically, their mailroom contractors) to properly upgrade the I-130 to an IR petition, from Family Based, since you are now a US citizen. It might be simpler to file a new I-130, but if you're confident, yes, you just need to file the I-485 along with a cover letter requesting that your I-130 be upgraded to reflect your new US citizenship. Be certain, of course, to provide a photocopy of your natz certificate.

Also can you tell me When do the 180 days start accumulating ? after I-94 expiry or after being laid-off ?

After I-94 expiry.

Is it a good idea to apply for conversion to F1/B1 ?

With an approved I-130? There's exactly zero chance of that change of status being approved.

 

[s66v]

hi

Hi,
We talked to an attorney. He suggested filing for a B1 visa. The visa may be denied but would filing change-of-status prolong the in-status period ? (since it takes six months for approval/disapproval)

In theory, yes, but I don't trust USCIS (more specifically, their mailroom contractors) to properly upgrade the I-130 to an IR petition, from Family Based, since you are now a US citizen. It might be simpler to file a new I-130, but if you're confident, yes, you just need to file the I-485 along with a cover letter requesting that your I-130 be upgraded to reflect your new US citizenship. Be certain, of course, to provide a photocopy of your natz certificate.



After I-94 expiry.



With an approved I-130? There's exactly zero chance of that change of status being approved.

 

[TheRealCanadian]

Hi,
We talked to an attorney. He suggested filing for a B1 visa. The visa may be denied but would filing change-of-status prolong the in-status period ? (since it takes six months for approval/disapproval)

It's not going to take six momths for ajudication. The Service Centers are averaging three months, and there's a certainty your husband's case will be denied. When (not if) it gets denied, then your husband will also be illegally present (not just out of status) which does have consequences.

Why are you so concerned with keeping him in status by filing frivolous petitions (yes, there's a good chance that the B-1 petition would be deemed frivolous and therefore he would not be considered in status while it was pending) when there is no penalty for him to file his I-485 when you become a citizen?

You should focus your energies on something that CAN make a difference - getting your oath scheduled.

 

[s66v]

Hi

Hi RealCanadian,

I like your reasonable advice. I would like suggestions on a couple of more points.

1> My Name Check: We called both the senators office and the people there said that they cannot help with our case as they have no control over FBI and thoudands of cases are pending with FBI. Who else can we talk to ? We cannot file a suit yet since there is a long way for 120 days to be over. If my husband sits unemployed for a long time, we'll run into financial hardships six months from now.

2> H1 expiry: We were told that we need to ensure that his company does not withdraw/cancel his visa, else he'll loose his 1-94 date and surely become illegal. He was laid-off due to down-sizing and its a fortune 500 comapany with 20,000 + employees. We are afraid that if we reach the company to request not to withdraw visa, they would become aware of it and actually withdraw. What are the chances of a big company withdrawing a visa ?

thanks,
Priya.

It's not going to take six momths for ajudication. The Service Centers are averaging three months, and there's a certainty your husband's case will be denied. When (not if) it gets denied, then your husband will also be illegally present (not just out of status) which does have consequences.

Why are you so concerned with keeping him in status by filing frivolous petitions (yes, there's a good chance that the B-1 petition would be deemed frivolous and therefore he would not be considered in status while it was pending) when there is no penalty for him to file his I-485 when you become a citizen?

You should focus your energies on something that CAN make a difference - getting your oath scheduled.

 

[budeny]

Please do not get confused with "illegal" and "out-of-status".
When your husband got laid-off his presence here became not legal - simply based on fact that he had lost his status here.
Luckily he may file I-485 as Immediate Relative (after you will receive your citizenship) - for this type of case INS does not care for how long he was out of status.
On other hand, even if this wouldn't be a case, then for Employment based I-485 INS currently forgive up to 180 days being out of status (combined for all occurrences).
So, to make the story short, if you need him to get sweet $$$ work and not sure about date of your citizenship arrival then the best and only option will be applying for H1b with another company (he will not need to got in quota since he already had it). And fastest way to find such company are consultings - just ask on forum if you need contacts.

 

[s66v]

To realCanadian

Hi realCanadian,

Could you please answer some of the queries below.
thanks,
Priya

Hi RealCanadian,

I like your reasonable advice. I would like suggestions on a couple of more points.

1> My Name Check: We called both the senators office and the people there said that they cannot help with our case as they have no control over FBI and thoudands of cases are pending with FBI. Who else can we talk to ? We cannot file a suit yet since there is a long way for 120 days to be over. If my husband sits unemployed for a long time, we'll run into financial hardships six months from now.

2> H1 expiry: We were told that we need to ensure that his company does not withdraw/cancel his visa, else he'll loose his 1-94 date and surely become illegal. He was laid-off due to down-sizing and its a fortune 500 comapany with 20,000 + employees. We are afraid that if we reach the company to request not to withdraw visa, they would become aware of it and actually withdraw. What are the chances of a big company withdrawing a visa ?

thanks,
Priya.

 

[santa4u]

I believe H1B status - you get 60 days to get a new job - until then you shouldn't be out of status.....

My recommnedation would to enroll for a login acount to USCIS account and the track the LUD (Last Update Date) on your spouse's I-129 Receipt Number (H1B petition).....see if it's gets any LUD...or status change...that may be the first indication, if the company cancelled H1B...

 

[TheRealCanadian]

We called both the senators office and the people there said that they cannot help with our case as they have no control over FBI and thoudands of cases are pending with FBI. Who else can we talk to ? We cannot file a suit yet since there is a long way for 120 days to be over. If my husband sits unemployed for a long time, we'll run into financial hardships six months from now.

All you can do is keep asking, keep staying on things. It may not help right away, but if the status changes you will know about it quickly.

We were told that we need to ensure that his company does not withdraw/cancel his visa, else he'll loose his 1-94 date and surely become illegal.

Since he will be (soon) the spouse of a US citizen, being out of status or illegally present will be forgiven, so I wouldn't worry about the H-1 being canceled.

 

[TheRealCanadian]

I believe H1B status - you get 60 days to get a new job - until then you shouldn't be out of status.....

He's been out of status since the day he got laid off. USCIS can (in their discretion) forgive this and they generally do for an interval of less than 60 days, but you shouldn't confuse this with being in legal status.