Question on the premise of AC21- pls help gurus

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artusa

Registered Users (C)
Hi,
I have been laid off as of last week. Today a recruiter (also the owner of another desi company) called me and said that I cannot be working on an EAD. Technically - If the previous employer who filed for my I-140 has laid me off, there is no premise for my 485. Hence if the previous company notifies USCIS, then the USCIS will simply deny my 485 petition. He says that I am already one week late in filing for AC21. Is this true and what should I be doing? How long do I have before I file for AC21? What happens if I have missing paystubs between
now and when the next job starts paying?
thx
 
AC21 - layoff

I read the AC 21 doc and the memo and none of it speaks about what happens in the case the employer has laid off the employee instead of the employee switching jobs...
GURUS, pls respond.
thx
 
artusa said:
said that I cannot be working on an EAD. Technically - If the previous employer who filed for my I-140 has laid me off, there is no premise for my 485.
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He's wrong. I was laid off by my I-140 employer three months before my I-485 was filed.

Hence if the previous company notifies USCIS, then the USCIS will simply deny my 485 petition.
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No, they'll issue you a notice of intent to deny, and you get 30 days to provide evidence of your new job.

He says that I am already one week late in filing for AC21. Is this true and what should I be doing? How long do I have before I file for AC21?
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Wrong again. There is NO obligation to proactively file anything with USCIS. If they RFE you for evidence of a job, you provide evidence of your new job and claim AC21 relief at that point.

What happens if I have missing paystubs between now and when the next job starts paying?
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Absolutely nothing, since unlike with an H-1B there is no requirement to be employed when an I-485 is pending.

I hope that desi joker knows more about business than about immigration.
 
Thank you for the response - real canadian

I sort of knew all these answers yet had to confirm them - I guess if one read the AC21 doc and the memo - which i did, one should come-up with the above answers.
Wonder how these employers try scare tactics to see if you can be hired for less.... just cos there is legalities involved!!!

Thank you once again for the answers real canadian.
thx :)
 
I called USCIS about layoff issue when I485 is pending, he told me once your sponsor's company laid you off, then, you are out of picture, and they do not even have grace period for you to find another job, but he said if you can find another job within days or a week, maybe he will reconsider his decision. It mostly dependes on case by case.

For your information, H1-B has about 10 days grace period, although it is not written in the law, but they recognized that.

It is better to file AC21 once you find a job, in that case you will be safe.

That is what I heared from one of the USCIS officer, you can call to ask them same question to see if it is correct or not.
 
it_guy said:
I called USCIS about layoff issue when I485 is pending, he told me once your sponsor's company laid you off, then, you are out of picture, and they do not even have grace period for you to find another job, but he said if you can find another job within days or a week, maybe he will reconsider his decision. It mostly dependes on case by case.
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This is absolutely incorrect. Once your I-485 is filed, you do not need to work for a single day in order to remain in status. I'm surprised that after years of documented proof that you get better answers from the "magic 8 ball" than USCIS, people actually listen to what the morons manning their phone lines have to say.

It is better to file AC21 once you find a job, in that case you will be safe.
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No you won't, since there's no guarantee that your AC21 filing will ever make it into the file.

That is what I heared from one of the USCIS officer, you can call to ask them same question to see if it is correct or not.
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You can call them five times, and probably get five different answers. It's settled law that an I-485 filing automatically keeps one in status, no matter what they do, work or not.
 
AC21 - layoff

TheRealCanadian said:
This is absolutely incorrect. Once your I-485 is filed, you do not need to work for a single day in order to remain in status. I'm surprised that after years of documented proof that you get better answers from the "magic 8 ball" than USCIS, people actually listen to what the morons manning their phone lines have to say.

Artusa --- Where does it say that once the I485 is filed, you need not work for a single day?
I understand that the GC process is for future employment and there is no need to work for sponsoring employer, but I have never seen it in the law- do you have a reference for me?
Especially if you have been laid off by the sponsoring employer, is it true that just cos the 485 is filed, allows me to be in the US?
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HI itguy and real canadian,
Thank you for the responses.
I would love to believe what real canadian says - simply cos it works in my favor ! ;)
I also think that real canadian's theory (sorry to call it that- couldn't find a better word) would stand true. This is after I read the details in the ac21 doc and the yates memo, I am willing to believe that the as per the memo, as long as you can show a job offer with the same or similar job description, it should not matter whether you worked after your layoff, for the new employer or not.
One thing unclear to me is - yates memo talks about job switching for american competitiveness act of 21st century. Undergoing a layoff and then having to look for a job is not being competitive in any sense.
Can someone comment on this please??? Will USCIS officer ask for documentation to show that I was laid off or that I switched jobs of my own free will?

Besides, there does not seem to be any explanation for a layoff situation in the yates memo nor in the ac21 document. All they say is that in the event the I-140 is revoked by the sponsoring employer and the I485 is pending for >180 days, a NOID is issued and one has to come up with a job offer with same or similar description within the timeline provided for responding to NOID.

I also have few other questions -
1. If I-140 is not revoked, how does USCIS know that I may not be in the same job?
2. How do I know if my previous employer has revoked the I-140 or not? Is there any way to find that out ?
3. I have a feeling that my previous company will not revoke the I-140. Can I hire my own lawyer to represent me for the pending I485 (incase they issue rfe's and i need my lawyer to respond to them) without having to file for ac21 just right now? Maybe I could file for ac 21 later after i get the job that I really think I should take up. Meanwhile I plan to take contract positions.
4. If I show an offer letter for a contract position with a hourly rate instead of a permanent position - will that be acceptable as long as the job description is same/similar?

I am scared though that the folks in USCIS over the phone are saying that if you are laid off , you don't got no chance!! I have been in the US for 8 years, and with the same employer for 5 years. Now all of a sudden, I am supposed to leave the US without the GC simply because all this time, USCIS took its own sweet time for the processing of my I485, and meanwhile I got laid off?? So now USCIS has the chance to jump on me and ask me to leave the country cos I just lost a job that I kept for over 5 years.

Please answer. I appreciate all the info I get in this forum, its a great forum.
thx
 
HI Kabish

kabish said:
Hi artusa

See this thread.Even i got laid off June 22nd 2005.What a unlucky no mann.See this thread.By the way u have ur EAD to work??Dont be panic.
You can join new employer and start working

artusa--- I do have an EAD (2nd ead) but I haven't found an employer good enough for me to file ac21. I need permanent offer letter, but i only have a contract position right now. I am starting work on contract position next week.
I have been tracking your thread for a while now, even before you sent this message to me. I know that ginnu has really answered some questions for you and the group in that thread.

Do you have a permanent offer now?

http://boards.immigrationportal.com/showthread.php?t=184275

Regards
Kabish
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Hi artusa

I do have contract position.I am joining tommorrow.But if you work 40 hrs per week and if your new company gives letter like " Full time" then it should be fine.Ginnu can you please correct me if i am wrong

Regards
Kabish
 
it_guy said:
I called USCIS about layoff issue when I485 is pending, he told me once your sponsor's company laid you off, then, you are out of picture, and they do not even have grace period for you to find another job, but he said if you can find another job within days or a week, maybe he will reconsider his decision. It mostly dependes on case by case.
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I think that USCIS guy just misunderstand your question. He probably thought of H1B case. For employment based GC, there are a lot of cases that poeple does not even join GC sponsor company during GC process. What USCIS guy told you could not explain this future employment case.
Pending AOS itself keeps you in status.
 
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