Returning to US after 4 months of India family stay with no Job...on Advance Parole

[iam4friendz]

1 Status Background:
on H1B for 8&1/2 years..
Filed I485 in Aug2007. Have unused EAD/AP valid till Aug 2010.
Currently working for employerY who acquired my EmployerX, before 2 months. Employer Y has filed AC21.

2 Family needs 4 Months of My India Stay:
My family has been looking to get my sister married.
I must go from MidOctober2009 for (around and hopefully worst case) 4 months to work on her matrimonial proposals.
In context with my family, it is genuinly neccessary for me to actively work on her marriage proposals, and help thru the marriage.
Hence I plan to initiate, a '4 months leave of absense' proposal.

3 What It Means To Me in Job's Context:
In best case, if it works out, upon coming back in Feb2010, I will resume my job with the same employer (who has supported my GC process so far).
It is clear to me that, even if my leave of absence proposal does not work out, I only want to start my job exploration only after I am back to USA. I do not want to worry about job in India working on my sister's marriage proposal.
I am confident of finding an equivallnet job specific to my skillsets after coming, if it takes.

4 Two Questions:
Q 4.1 In worst case if my company terminates my employment before I go, what will be impact upon smoothness of my entry US in late January on AP, with no job ?

Q 4.2
I acknowledge theoretically, there should not be any problem coming back to USA with just AP and no job.
However, what if my current company notifies USCIS of my termination within few days? I imagine it'd be treated as loosing the base of my GC process itself.

In this case though I am leaving on a genuine reason, and confident of finding an equivallnet job upon return if it takes,
....what are chances that USCIS may consider it in a manner that my put my GC approval process at risk ?


5 Also, Any Recommendations ?:
Any other inputs in above situation may be highly appreciated.

best regards

 

[hoochie]

Nothing will happen theoritically EAD and AP dont circle back with employment - Unlike a H1b.
Only thing I would do if I was in that situation is - If they terminate your employment - find some other company and file a AC1. Its easier to deal with any RFE's associated with this - rather than risk the employer pulling the underlying 140/labor and risk loosing it all.

Thanks, Hoochie

 

[iam4friendz]

Hi Hoochie.
Thanks for response.
#1
Though bound by policies (lenght of max unpaid leave), my current employer is acknowledges my need of leave. They will not to pull I 140.
(To me it means that Employer's legal firm would route any RFEs in between to me in this case)

#2
Due to company acquisition, my group has gone thru name change. Which required my company to file AC21 just 2 months back.

Given above 2 inputs, do you think it is neccessary to rush to persue an equvivallent employment just to get AC21 (before I come back to USA)?

best regards

 

[hoochie]

As long as they are ok to not pull ur 140 and you are absolutely certain about it - you should be fine. Again, its my opinion - I am traveling on AP frequently for the last 4 years - Thats what I would have done. Go back - have fun ;-)

Check with a lawyer for sure - it might be 200 bucks well spent.

Thanks, Hoochie

 

[iam4friendz]

Hi Hoochie.

Your response appreciated.
Thank you.

best regards

 

[Jackolantern]

If they terminate your job and/or revoke your I-140 while you're abroad, you're in trouble and may be unable to reenter the US. If they don't, you'll be fine.

 

[iam4friendz]

That's red signal.

Current Employer(Y) just told today if I do not return within 1 month of unpaid leave , they are obliged to notify USCIS of job termination.
I am yet not sure if this means my GC support abandoning or even I140 revolking.

Practically I'll return only after (worst case) 4 month.

Now what ?
(My I485 was filed on Aug2007. I have Valid EAD/AP. My Labor&I140&I485 was filed by employerX. Current Employer Y acquired them 3 months back, and filed my AC21 also)


Let me provide some more info:
On H1B (valid thru 2012 with current employer)
Priority Date : 01/2006
I485 FilingDate : 08/2007
EAD till : 10/2010
Adavnce Parole : 08/2010
Current EmployerY : purchased employerX 2 months back. Filed my AC21 with USCIS.


Given this:
What are risks at US immigration while I am coming back ?
How could they be addressed respectably ?
What are the options in front of me to ensure safe continuation of my GC process ?

 

[Jackolantern]

That's red signal.

Current Employer(Y) just told today if I do not return within 1 month of unpaid leave , they are obliged to notify USCIS of job termination.
(Non return within month will be treated as job resignation/termination)

What does that mean? You need to return within one month after your unpaid leave has ended, or your unpaid leave itself is being restricted to 1 month total?

 

[Jackolantern]

It is clear to me that, even if my leave of absence proposal does not work out, I only want to start my job exploration only after I am back to USA.

You won't be able to return to the US if you lose your job and the employer revokes the I-140 while you are away. Unless you somehow find an AC21-compliant US job while in India.

 

[iam4friendz]

I can understand that current employerY is certainly in position to notify USCIS for AC21 (after restricted allowed unpaid leave of total 1 month)

Q1
Is employerY also in position to revolke my I140 ? (although they are not the one who filed Labor/I140/I485 and it's more than 2 years after I485)

Q2
Do I have to find another job before employerY notifies USCIS ? (Clearly that means in India)

Q3
Do I have to start working for that employer before previous employer notifies USCIS ?

Q4
What is the latest possible time by when my future employer will need to file another AC21, after my revious employer notifies USCIS ?

 

[Jackolantern]

Q1
Is employerY also in position to revolke my I140 ? (although they are not the one who filed Labor/I140/I485 and it's more than 2 years after I485)

Yes, if the merger or acquisition is a "successor in interest", the new employer now owns the I-140 and can revoke it.

Q2
Do I have to find another job before employerY notifies USCIS ? (Clearly that means in India)

Once the employer asks USCIS to revoke the I-140, you'll have a short time (like 30 days) to find a new AC21-compliant job. And that job must be physically in the US (but you can interview for it in India, if the company lets you).

Q3
Do I have to start working for that employer before previous employer notifies USCIS ?

No. But you need at least a job offer before the deadline USCIS gives you.

Q4
What is the latest possible time by when my future employer will need to file another AC21, after my revious employer notifies USCIS ?

Your next employer doesn't have to file anything for AC21. You are responsible for filing the AC21 paperwork, using a job letter or job offer from the employer. If your employer chooses to do the filing for you, that's their option, not their obligation. It needs to be filed by whatever deadline USCIS gives you (30 days, maybe 60 days if you're lucky).

 

[iam4friendz]

Thank you for response again Jackolantern.

Q1'
How do I know my employer has revolked I-140 or they have just notified to USCIS ?

Q2'
How do I know USCIS has given me 30 or 60 days to find next AC21 compatible job ?

Q3'
Out of 4 months of being in India, Imagining ..
..that by the end of Month1, employer notifies USCIS of my job termination &
...that a compatible job is found by the end of month2

There will still be 2 moremonths before I can return to USA to join that future job.
Can USCIS accept AC21 case with an offer letter which is 2 months in the future, (and me doing it from India) ?

best regards

 

[ginnu]

Thank you for response again Jackolantern.

Q1'
How do I know my employer has revolked I-140 or they have just notified to USCIS ?
-------------You can check USCIS online status if you have I-140 receipt number (USCIS online status is not always correct)
Q2'
How do I know USCIS has given me 30 or 60 days to find next AC21 compatible job ?
----------------USCIS will send RFE or NOID to your lawyer who filed I-485.Q3'
Out of 4 months of being in India, Imagining ..
..that by the end of Month1, employer notifies USCIS of my job termination &
...that a compatible job is found by the end of month2

I still will have minimum 2 more months to join that job.
Can USCIS accept AC21 case with an offer letter which is 2 months in the future ?
-----------------------Read AC21 Memo. you need to be working with same/similar job duties and new employer must give to permanent job offer to invoke AC21.
best regards

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

 

[Jackolantern]

Q1'
How do I know my employer has revolked I-140 or they have just notified to USCIS ?

Either by seeing the online status change for the I-140, or USCIS sending you an RFE or NOID (to your US address) notifying you of the situation and requesting that you respond with new employment details by a deadline.

However, neither of those is consistent; sometimes they don't update the online status and don't send an RFE/NOID. Then one day you get an I-485 denial and have to file an MTR ... but with the I-485 denied, you would be unable to enter the US with your AP. You could use your H1B, but if the employer terminated your job and revoked the I-140, they probably would also revoke the H1B.

Q3'
Out of 4 months of being in India, Imagining ..
..that by the end of Month1, employer notifies USCIS of my job termination &
...that a compatible job is found by the end of month2

I still will have minimum 2 more months to join that job.
Can USCIS accept AC21 case with an offer letter which is 2 months in the future ?

It can be very far into the future, much more than that. Employment-based GC is for a future job; it just happens that for most people, it is also a current job because the employer will not leave the job empty for a long time.

 

[Jackolantern]

You're taking a big risk with this trip. If you lose your GC process because of this, I'm sorry for whoever marries your sister. Every time you look at him you'll remember that he contributed to your GC chances being destroyed.

 

[iam4friendz]

Thanks Ginnu for response.

Q''1
From your comment, do I interpret it as, I will not be able to file AC21 change, based on the future job offer which may be to join 2 months down the line..since I may have not started working for them ?


Q''2
What if my current employer informs USCIS of my job termination, but I do not get any RFE/NOID till it's time for me to come back to USA, what could it mean in worst case ?

Q''3
After my current employer would notify USCIS of my job termination, what is the most likely thing I can expect from USCIS? RFE? or GC process termination ?

Q''4
4 months will be inactive time for me as far as work/job changes are concerned.
4 months will be active time for USCIS after receiving termination notification from my current employer. ..USCIS may just consider it as I am actively persuing but not able to find the job etc...and they may not care about the reasons of me getting myself in this situation.

What is the maximum length of time, before elapsing which, that the employer must notify to USCIS of my job termination after termination?
Would this make any difference ?

Q''5
What'd be the best possible effort I can do from my side (considering I am going for 4 months, and employer will void my employment within 1 month & notify USCIS) ?

 

[iam4friendz]

Thanks Jackolantern for response.
I can't boast on my behalf that it won't happen. I can only say I have been saved so far, from connecting my own serious situations to someone innocent.
But it's nice of you to help me imagine this situation/test.
Infact the worst case being..if in 4 months my sister's marriage does not happen....


Ginnu, Jackolantern
Thanks for great help.
I still look for answers to the post just above. Appreciate your responses ...

 

[lprkhoj]

Thanks Ginnu for response.

Q''1
From your comment, do I interpret it as, I will not be able to file AC21 change, based on the future job offer which may be to join 2 months down the line..since I may have not started working for them ?

True. As long as you have a job offer, you are eligible to file AC21. So one option could be for you to find an employer - before you leave the US - who's willing to hire you 4 months down the line. Finding an employer while in India might be possible as well.

Q''2
What if my current employer informs USCIS of my job termination, but I do not get any RFE/NOID till it's time for me to come back to USA, what could it mean in worst case ?

If the IO at the airport (POE) doesnt see your status updated in their system due to any action by your employer, you'd be good. However, if he does, then be prepared to answer questions. But if you have a job offer, it would easier to explain. Even if you dont have an offer, you might be able to argue about not receiving any RFE/NOID but it might not be too fruitful - that's just a personal opinion.

Q''3
After my current employer would notify USCIS of my job termination, what is the most likely thing I can expect from USCIS? RFE? or GC process termination ?

Anything, as mentioned in an earlier post (about USCIS' inconsistency) RFE or NOID or NOD in that likely order

Q''4
4 months will be inactive time for me as far as work/job changes are concerned.
4 months will be active time for USCIS after receiving termination notification from my current employer. ..USCIS may just consider it as I am actively persuing but not able to find the job etc...and they may not care about the reasons of me getting myself in this situation.

They'd just send notices if they've proactively been informed by your employer to revoke I140 - see response below.

What is the maximum length of time, before elapsing which, that the employer must notify to USCIS of my job termination after termination?
Would this make any difference ?

For H-1B, employer has to inform USCIS within 7 (or 30, either of these two, cant recollect) days but for I140, employer is not obligated to inform USCIS. In other words, your employer may just inform USCIS to revoke H-1B - because its obligatory - but not inform USCIS to revoke I140 - because that's voluntary. Then again it all depends upon what your IO looks for at POE. If he sees H-1B revoked, then would ask for job offer if I140 is still active.

Q''5
What'd be the best possible effort I can do from my side (considering I am going for 4 months, and employer will void my employment within 1 month & notify USCIS) ?

IMHO, try to find an employer who's willing to take you on board after 4 months. It might be your current employer as well and they may revoke your H-1B for whatever reason after you go on leave but could still be willing to take you back on EAD after 4 months and they dont have to touch your I140 at all, all this while.

 

[iam4friendz]

Hi lprkhoj. Thank you for your point by point response.

My Future Actions and Questions (in Blue color)

Hi All, Can my action flow/or questions (in blue) please helped with ?

So here is course of actions I am looking to perform now:

A1: With AR-11, Inform USCIS of my new address (where I can receive mails in my absence in USA)

A2: Activate my EAD immediately before I leave. And inform USCIS about it. (how?)

A3: Inform USCIS that any legal communication be routed to me, than my current company lawyer. (How?)

A4: Persue alternate compatible future professional position while being in USA itself. Including at current employer.

A5: Go to India. Focus on my task.

A6: After 2 months, Keep checking with hellp of EAC receipt number on USCIS website, if there is any RFE for my GC case.
(Does USCIS update on website, immediately, so that I can track it weekly or so?)
(Do I have right to receive copy of documentation, that my company will send to USCIS after the allowed leave period is lapsed ?)

A7: After 2 months, Persue more actively, alternate compatible future professional position , and hopefully have one.
(With professional skillsets I have, I am positive about finding one in my field hopefully around where I am located in USA)

A8: After completion in my personal mission, Come back to Immegration.
Explain to them
- the conditions that led to precious job loss
- the alternate offer
- my intent to continue working in my field

Option RIGHT:
A9: Enter in USA. Attend any queries
(BTW. Can I respond to any queries by being in India, if I land up with a compatible future job offer, but still be in India ?)

A10: Join the new employer

A11: File AC21.


Option LEFT:
A'9: Wait in India, to fight the resistance that was made at immigration, to enter in US, when I had compatible job offer and current AP.
How can this be done ? Or if there is better way to handle this right at immigration itself ?What and why are chances of this when I'd have a compatible job to join ?