Legal status after layoff when I have EAD and I140 approved

[leenajain]

Hi,

I have labor certification in EB3 category with priority date of Nov 2003. I applied for my I140 and 485 in July 2007 when the dates became current for all categories. In 2009 my I140 got approved, currently I have my EAD valid till May 2013 and have H1B visa in 12th year extension. I got laid off today and have a couple of questions:
- What is my current status in US?
- If I find another job using my EAD, what do I have to do to continue my 485 processinng?
- Does the new job have to be for the same position for which my labor certification was done?

Your help is greatly appreciated.
Thank You.

 

[nkm-oct23]

Since you have a pending I-485, you are considered in a valid legal status. You can use EAD to seek a new job. The new job has to be in an occupation similar to one specified in LC. Your I-485 will proceed as usual.
Since you are no longer in H1b status, you cannot travel out of US and return without an Advance Parole. If you don't have one, it is wise to apply for one ASAP if you anticipate any travel in immediate future. (It is good idea to apply for one just to cover any emergency)

 

[Jackolantern]

You are in legal status ... but if USCIS sends you an RFE or NOID about your job situation, you will have to provide evidence of a job or job offer that is "same or similar" to the one on the labor certification, before the deadline for the RFE/NOID. If you don't, your I-485 will be cancelled.

Overseas travel is inadvisable while you don't have a qualifying job or job offer lined up. Because if they ask questions about your job situation at the POE, lacking a proper job or job offer could result in you being denied entry, or trigger an immediate RFE/NOID if they let you in.

Note that for the sake of earning money, you can use the EAD to get any job for which an employer will hire you. However, only jobs that meet the "same or similar" criteria will give you AC21 protection. So you could work in a random job to earn money while you search for a "same or similar" job.

 

[leenajain]

Thanks a lot for your response. After I find a new job qualifying in AC21 protection, does the new employer have to transfer my I140? What is the process for doing this?

Do I have the option of transfering my H1B or is it advisable to use EAD for the new job?

Thank You.

 

[ginnu]

Thanks a lot for your response.
After I find a new job qualifying in AC21 protection, does the new employer have to transfer my I140?
------NO
What is the process for doing this?
------once I-485 pending hits 180 days and you have I-140 approved and get same/similar job then you will need same/similar job offer letter from new employer to invoke AC21 with pending I-485
Do I have the option of transferring my H1B or is it advisable to use EAD for the new job?
------------- if you find a employer who is ready to file H1 transfer then nothing wrong to join new employer on H1. FYI at this time many H1 transfers are being rejected or USCIS asks lot of documents from Employer. it is your choice to join with EAD or with H1 transfer
Thank You.

---------------

 

[leenajain]

Thank you all for your resposes that really helps!

 

[Jackolantern]

What is the process for doing this?

Submit the job offer letter to USCIS, or actual job letter if you've actually started working for them, along with a copy of your I-485 receipt and a cover letter stating that you are invoking AC21 portability. The job letter must provide enough of a job description so USCIS can see the job duties meet the "same or similar" criteria.

Note that it is not mandatory to proactively send this job letter. You have to send it only if USCIS sends RFE or NOID about your job situation, or if you are scheduled for an interview (in which case you'd bring the letter to the interview). Some people proactively send it because they think it's safer, however sometimes USCIS still sends RFE or NOID anyway even though they already received the AC21 letter long ago when the individual changed jobs. So it's not clear if there is any advantage to proactively sending it.

Do I have the option of transfering my H1B or is it advisable to use EAD for the new job?

H1B transfer is theoretically possible, but not practical because you lost your H1B status and would have to wait until the next H1B is approved before you can work for the next employer in H1B status.