Regarding Future Employment EAD

S

simmam

Registered Users (C)
This question may be asked several times here, but I will give it one more try.

Can I use future employment EAD with my current employer to continue my Job .
If so what all I need to do. My 6 years H1 will be expiring in March 2004.


485 Details : RD : 06-FEB-2002
ND : 08-FEB-2002
FP : 29-MAR-2002
Got Second EAD: 11-NOV-2003


Please advise me .

Regards,
Simmam
 
Yes you can use. Keep renewing the EAD. The renewal do not require employment letter etc. As long as you have valid EAD (not expired) you are good to go
 
EAD is not tied to a particular employer. It is an unrestricted work authorization. INS, however, may ask why are you not working for the sponsoring employer (goes to the intent element) when they take up your 485. If you are working in same or similar occupation, shouldn't be a problem (you can invoke AC21 provisions).

"future employment" does not mean that employer will have an opening to absorb you in the future. The job opening "must" be immediate, it is just that the employer is waiting for INS to provide the work authorization. Therefore, if you don't work for the sponsoring employer right after getting EAD, INS may say that there is no immediate opening... (again accept where AC21 would apply).
 
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AC21 and Future Employment are totally different

If you are applying for future employment you cannot go for AC21!!! Future employment means you need not work for the employer until you get 485 approved!!! You can apply for future emp staying in your home country(without a H1). When you get a RFE asking - will you work for the future employer, you can ask your future employer to give a letter stating they have an opening in the company and you can join when you get your approval. Also, state the salary in you labour.
 
You are right in most part. Some notes:

1. You are confused about this future employment thing. If you are already in US working for employer B whereas employer A has sponsored GC : You can switch to employer C without ever joining A by invoking AC21.

2. You are right about the scenario where the beneficiary in outside of US while waiting for GC in order to join the employer. No AC21, EAD etc. in that case. But, if you manage to come to us, lets say using H1 sponsored by some other employer, you can still use AC21 and join a third employer.

3. If you are in US, has EAD but still do not join the sponsoring employer (you can do it theoritically), INS may raise an issue of "intent" to join and immediate availability of the job with the sponsoring employer. Future employment does not mean "availability of job in future". Remember the employer has to certify (during labor process) that there is an immediate job opening. Now, you have immediate job opening and also has EAD .. but if you still do not join the employer (or employer does not let you join)... what does it shows... either employer or employee does not have intent to work for the sponsoring employer, therefore, 485 is not approvable.

4. Don't know any precedent but the regulations are clear. If INS ever finds out (even after giving you GC) that you never had the intent to work for the sponsoring employer at the time of filing the petition, they may revoke the GC on the grounds of "fraud". As I said, it is not common because INS does not seem to bother. But, they do check it when you file for citizenship. You could say.. "how would they ever find out whether I had the intent"... true, not likely in most cases. But consider this, you quit right after getting stamp on the passport... in absense of any other valid argument from your side (you were laid off... your job was moved to else where...) it will give rise to the presumption that you never had intent to work permanently with the employer... you were simply waiting for your green card. Burden will be on you to rebut this presumption or you may potentially lose the green card.
 
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goodsaint

I remember reading the following on AC21 memo by Yates of Aug.4 2003.
(earlier it seems it was on USCIS website but now not showing):
in the last para:
'............
In all cases an offer of employment must have been bonafide,and the employer have had the INTENT at the time of Form I140 is approved,to employ the beneficiary upon adjustment.It
should be noted that there is no requirement in statute or regulations that beneficiary of a Form I140 actually be in the underlying employment until permanent residence is
authorized.Therefore,it is possible for an alien to qualify for provisions of 106(c) of AC21 even if he or she has never been employed by the prior petioning employer or the subsequent
employer under section 204(j) of the act. '.
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Not a legal advise.only lay man's opinion.
 
Re: goodsaint

Originally posted by Participant
In all cases an offer of employment must have been bonafide,and the employer have had the INTENT at the time of Form I140 is approved,to employ the beneficiary upon adjustment.
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Click to expand...

I was just worried abot this sentence as i was laid of just after applying for I-485 and pending I-140. I asked attorney he was not sure what to say. He said right now we cannot make out any thing. We have to wait and see.

Any insites please.
 
if are laid off before your I-140 is approved, legally the whole GC process is void. AC21 does not help you here.
 
Problem starts here. How the CIS will come to know that the intent was changed?

Since at the time applying for I-485 i was still employed with company. Now I got laid off company did not inform CIS about the change of intent. What constitutes the change of intent? Is it informing CIS? Or is it layoff.

My I-140 was approved 10 months after layoff. Employer did not inform CIS.
I would like adding another incident happened around me:

He was not a concurrent filer. His I-140 approved and applied for I-485. Company’s HR confused between revoking H1 and I-140 revoked his I-140 at around 160 th day. He got interview notice immediately. Officer told if you can just bring the letter your company does not intending to revoke I-140 I will approve your case otherwise case will deny the case. He gave a week time. Since this company came to about the difficulty they gave him letter. Subsequently he got approval showing AC-21 letter and letter from the company.
This case happened in this March.
Back to my original question
What constitutes the change of intent? Is it informing CIS? Or is it layoff.
 
Intent is in "the mind". Nobody can read what is inside someones mind. Therefore, "Intent" is usually shown by the circumstances and actions surrounding the event.

In your case in partcular, INS may find out when they send an RFE for 485 for evl/W2 etc. Or your case may just slip through the cracks and you will get approval.

On the other hand, you mentioned that you were still employed with the sponsoring employer when 485 was filed. Did you have approved I-140 at that time? If yes, it is slam dunk; you can invoke AC21.

There are lots of issues with concurrent filing specially when employee departs before 140 is approved. Traditionally, 140 petition is void once you depart the employer (for whatever reason). I don't see anything in AC21 which addresses this issue. You should talk to a good lawyer.

I am not a lawyer.
 
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Originally posted by goodsaint
There are lots of issues with concurrent filing specially when employee departs before 140 is approved. Traditionally, 140 petition is void once you depart the employer (for whatever reason). I don't see anything in AC21 which addresses this issue. You should talk to a good lawyer.
Click to expand...

I think I-140 will not become void if the intentes are not changed.

Comany did not revoke I-140. That means intent was not changed. Now they may argue that we lost intent at the time layoff.


I spoke to the lawyer. He says there is some law in US constitution which says in an agreement/Law if there is loophole it always goes against the party which written that.
He says wherever AC-21 is not clear same law applies. Fortunately attorney who represents me is also attorney for company.


My layoff was done before the approval of I-140. H1 was revoked. I have already submitted AC-21 letter with my new company as my current and future employer.
 
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On the contrary, lay off gives rise to the presumption that the employer no longer has intent to extend employment to the beneficiary.... you/employer will have to rebut it with clear and convincing evidence that at the time of layoff the employer retained the intent to rehire you. How will you show that? Was there anything in the papers.... will a company executive testify this under the perjury... company probably did not revoke 140 because they are not required by the law to do so (unlike H1). But, this does not conclusively prove that they retained the intent to rehire.

Regarding the other statement regarding "goes against who writes it"... it is not true in case of "statutes". Yes, if there is a contract between you and another party and if an ambiguity arises, court favors the innocent party. But, thats contract law (more importantly, it is "common law" -> common law is the law made by judges through landmark cases), does not apply to "statutes". The Courts read the statutes and try to see if the issue in question is explicitly addressed or not. If yes the statute is applied otherwise it is not applied. As per my reading of AC21, it is not ambiguous per se to the issues it addresses. The issue is that it does not address every issue surrounding 140/485 process. What is missing is the final regulation (official interpretation of AC21). It does not appear to be forthcoming from INS anytime soon (or ever).

Every issue has two sides, and arguments can be made in favor of each. I am sure a good lawyer can right a brief in support of the case countering all the points I mentioned above. This is why we need lots of attorneys :). The argument does not have to be absolute correct and convincing. Generally, The Courts go by preponderance of the evidence and arguments.

I am not a lawyer but I know this much because I am a 3rd year law student. I don't mean to frighten you. I guess you can handle your case better if you know the other side of the story.

This is my understanding of the subject. This is in no way a legal advice.
 
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You are also correct for most part

I have read this in Murthy.com

You need not work until u get I485 approved. INS would check when u apply for citizenship if you have ever worked for the future employer. If not they would deny ur citizenship!!!

Another issue I see here is, then anyone can apply for future employment and the go for AC21 and get it approved without working for the future employer!!!! Is this possible I don't know??
 
I said that too. Theoritically, you need not work for sponsoring employer until approval of 485. But, INS may hit you on "intent" side if you have EAD but still does not work for the sponsoring employer without no valid reason (except where AC21 is applied). It is not uncommon now-a-days to receive an RFE asking you to clarify "why are you not working for the sponsoring employer"... Of course, this issue is mute if you are not in US, just waiting for GC outside of the country.
 
goodsaint .. EAD without I140 approved

Goodsaint,
How does this scenario fit with USCIS argument why are you not working for the sponsoring employer? Having EAD for the future employment, while still I140 and 485 pending, isn't it dangerous situation to abandon H1 the status?

If something goes wrong with the future employer going out of business or changing their intent. It is not safe to work for the sponsoring employer with the EAD until I140 is approved and I485 is pending for more than 6 months. Only then the USCIS argument would be applicable.

thanks
raju
 
Originally posted by goodsaint
this issue is mute if you are not in US, just waiting for GC outside of the country.
Click to expand...
This scenario will not come up, as you cannot apply for I-485 if you are not in this country. You need to go for CP where there is no AC-21.
 
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raju,

Please read my posts again. What I said was that you will have to rebut the presumption.....by clear and convincing arguments.

The case you mentioned where I-140 is not yet approved and you don't want to risk leaving present employer appears very much convincing and reasonable. How can I leave the employer where INS has not found yet that I am eligible for employment based green card (because they have not approved 140 yet).
 
Originally posted by goodsaint

The Courts read the statutes and try to see if the issue in question is explicitly addressed or not. If yes the statute is applied otherwise it is not applied. As per my reading of AC21, it is not ambiguous per se to the issues it addresses. The issue is that it does not address every issue surrounding 140/485 process. What is missing is the final regulation (official interpretation of AC21). It does not appear to be forthcoming from INS anytime soon (or ever).
...........
Generally, The Courts go by preponderance of the evidence and arguments.

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The statute is interpreted by the executive agency as below(Memo).
"'.............Therefore,it is possible for an alien to qualify for provisions of 106(c) of AC21 even if he or she has NEVER been employed by the PRIOR petioning employer or the SUBSEQUENT
employer under section 204(j) of the act. '.'"
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Please review the theoretically posssible sequence
1)Even never been employed by the sponsoring employer,AC21
still can matter.
2)Using AC21 can also imply an EAD also.
3)Further,Pending AOS --An EAD is allowed.
a)So having/using an EAD for a Pending AOS, sponsored by an employer, with whom the employee is never worked/working( but work after AOS- scenario.)
b)An employee working with sponsoring employer but
was out before AOS or I140 approval scenario).
As per statute interpretition:
case a)
The employer can have the intent( thro' a letter) still he will employ the beneficiary after AOS.
case b)
The employer can show the intent(Thro' a letter) to
have employed after AOS AGAIN(Hence no revocal of I140) and explain present gap is due to some adminstartive measures.
(Employer can still say, as per the provisons, he can employ him
only after AOS again and he is not bound by the rule and he can give a break in employment well before AOS and hence his decision,(for example) and can be the circumustantial evidence)
Still case a) and b) are not still meeting the statute(if not by common law)?and to be Adjusted aswell(theoretically as of now
as final regulations are not framed)?
(since it is mentioned case will be read matching the statute lines)
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Not a legal advise.Only layman's opinioin.
Click to expand...
 
As I mentioned earlier, The Courts go by the preponderance of evidence.

You mentioned "showing intent through letter".

Let’s examine this through the following example:

You are at airport asking this guy to go to Mexico. He says "yes I will go to Mexico". But, at the same time you see him boarding a plane to Canada. What will you believe? It is not impossible that he may go to Mexico through Canada, but, is it a reasonable assumption? What will you believe more 1) he is going to Canada or 2) He is going to Mexico ? Remember preponderance of evidence!!!

Now, the employer is laying off the person but at the same time giving a letter mentioning rehiring. How believable is this? It is very much possible that the 140 and 485 will be approved the very next day or within a month. How can it be believable that the employer is ready to rehire the person very next week or next month after laying off the employee. The employer is laying off the person because the employee in question is no longer required or the employer no longer has resources to pay salary. Would you believe that this situation will changed concurrent to the approval of 140 & 485?

Remember, preponderance of evidence!!!
 
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