RFE - AC21 - Layoff < 180 days

M

mavishka

Registered Users (C)
We are in the process of finalizing the RFE response. Our attorney has some concerns about layoff before 180 days after filing 485 (485 RD 02/2002, Layoff in 06/2002).

My understanding is that the time of leaving or being laid off from the sponsoring company does not matter as long as the 485 is pending for more than 180 days when the case comes up for adjudication. Can the experts confirm whether this is correct?

Are there any folks here who were approved under similar circumstances or know of friends/relatives?

Thanks in advance.
 
I found this on Murthy's web site:
Aug 04, 2003 Memo from CIS
http://www.murthy.com/news/UDportme.html

One thing that was highlighted in the memo:

New Job Must Be "Same or Similar"

The Memo states that if the I-140 petition has been approved and the I-485 applicant takes a new job in a "same or similar" position after the I-485 application has been pending 180 days or longer, then the underlying I-140 petition remains valid under AC21. In a footnote, BCIS mentions that the underlying Labor Certification also remains valid if the same conditions are satisfied.

If the I-485 has been pending fewer than 180 days, then the approved I-140 petition shall not remain valid and shall not entitle the foreign national to work with a new employer or in a new job under AC21.
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The second paragraph is probably what concerns your lawyer.
It looks like the memo does not really address the difference between 'getting laid off' and 'leaving voluntarily'.
 
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Your are completely safe

as per laws goes. One can change job before 180 days too provided I-485 should not get adjucted within 6 months after filing 485.
 
Thanks for your responses. Yes, the INS Memo of June 2001 is kinda vague. It's open to individual interpretation.
 
BCIS does not actually verify when you quit your last job. It does not even verify when you joined your new job. So if you are getting RFE/adjucation after 180 days of 485 filing you are fine.

HTH
 
Originally posted by sb_tiger
BCIS does not actually verify when you quit your last job. It does not even verify when you joined your new job. So if you are getting RFE/adjucation after 180 days of 485 filing you are fine.

HTH
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They may not verify when you quit the company that sponsored you, but they could figure it out from the Employment Verification Letter from your current employer. For example the I-485 has RD/ND of Feb 2002. The EVL states that " Mr. xxxx has been with ABC company since Jun 2002"; here the CIS can figure out there were only 4 months between your I-485 RD/ND and your leaving the sponsoring company.

It all depends on how good the lawyer is presenting this case. To be honest, the language in the August 4, 2003 memo was pretty strong.
 
GC012002, can you direct me to the August 2003 INS Memo?

Well, the start date in the EVL from the current employer is 09/2003. I think sb_tiger has a point here in that they have not asked for a copy of the termination letter (06/2002). Ofcourse, if they investigate into it they can find out, but on the face of it they don't seem to care about the termination date.

Since the start date with the new employer is 09/2003, which is more than 180 days after filing 485 (02/2002) my feeling is that they will not bother too much. What are your thoughts on this?

Thanks.
 
Originally posted by mavishka
GC012002, can you direct me to the August 2003 INS Memo?

Well, the start date in the EVL from the current employer is 09/2003. I think sb_tiger has a point here in that they have not asked for a copy of the termination letter (06/2002). Ofcourse, if they investigate into it they can find out, but on the face of it they don't seem to care about the termination date.

Since the start date with the new employer is 09/2003, which is more than 180 days after filing 485 (02/2002) my feeling is that they will not bother too much. What are your thoughts on this?

Thanks.
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You should be OK.

I think GC012002 was talking about this memo.

http://uscis.gov/graphics/lawsregs/handbook/I140_AC21_8403.pdf

What happened to I-140 after you were laidoff? Did they do any thing with it?
 
My opinion :
Here are the possible scenarios for those laid off within 6 months of filing I485:
1) Company informs INS within 6 months of I485 RD : Your GC process will be rolled back
2) Company informs after 6 months : You might be issued NOID (Intent to Deny Notice). Then you have to fight out that they (ex employer) told you that they will hire you in future if the company position improves. This way you are telling INS that your ex employer had the intent to continue his future job offer to you. You can question your ex employer why he has not informed INS immediately. The odds will be in your favor because of the delay by the company in informing the INS. Almost no company goes through this rout. Why do they want to waste money on court cases that are not going to help them any way ?
3) Company never informs , but INS figures out through enquiry after you respond to RFE : I have never heard INS doing this, but this is the scenario your lawyer and most of the people in your place, fear. OK, in this scenario, INS will likely issue NOID and this scenario will be same like scenario 2. You got to argue in your appeal that the company had intent to hire you in future. At this point, it is your word against your company’s proof that they had no intent to hire you back in future. They have to prove this , otherwise the judge will ask them why they haven’t withdrawn your I140 ? The judges are more likely to be sympathetic to you than to your company (who likes companies that lay off people :D)
4) Company never informs, and INS never investigates : This is what happens in most of the cases because of odds against them as I have mentioned in cases 2 and 3 above. You will be approved :)
Good Luck.
 
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ar888:
Thanks for the link to that memo. The 140 wasn't revoked.

dsatish:
Thanks for your time to explain all scenarios in detail.
 
This is from the BCIS Memo dated 8/4/2003:

=======================================
If the Form I-140 (“immigrant petition”) has been approved and the Form I-485 (“adjustment application”) has been filed and remained unadjudicated for 180 days or more (as measured from the Form I-485 receipt date), the approved Form I-140 will remain valid even if the alien changes jobs or employers as long as the new offer of employment is in the same or similar occupation. If the Form I-485 has been pending for less than 180 days, then the approved Form I-140 shall not remain valid with respect to a new offer of employment.
=======================================

This still doesn't say anything about when the job can be changed. It lays stress on 485 remaining unadjudicated for 180 days or more. So I guess there's no real cause for concern even if one has changed jobs or has been laid off before 180 days as long as the 140 is approved, 485 is unadjudicated for 180+ days, and the new job or offer is in the same or similar occupation.
 
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Anyone who got approved or heard of anyone getting approved recently with AC21 filed under 180 days!?

Iam stressed thinking about it.. 'coz, I took a new job after getting laid off from my previous company.

This new job is a govt. job, which means I cannot expect any favours. I have also filed my AC21 in Oct03.

Any info, comments would help. Thanks..

RD: 01/22/03
FP: 03/14/03
 
Originally posted by kalki007
Anyone who got approved or heard of anyone getting approved recently with AC21 filed under 180 days!?

Iam stressed thinking about it.. 'coz, I took a new job after getting laid off from my previous company.

This new job is a govt. job, which means I cannot expect any favours. I have also filed my AC21 in Oct03.

Any info, comments would help. Thanks..

RD: 01/22/03
FP: 03/14/03
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There are so many people including me. There are 4 other people from my company it self. It is very common as long as your employer is not informing the CIS before the six months you are safe.

Usually there will not be any question about loosing job with GC sponsoring company as GC is for future job. All they have to verify what was your intent while filing I-485. There is chance that in case of an interview office may pose this question. You can always say like company was doing badly. They laid you off temporarily. You wanted to join them back as soon as company picks up. But you moved to different place so you cannot join since now there are different constraints. Or some things like that. So you are using AC-21.

I do not think you need to worry about that.
 
Originally posted by kalki007
Anyone who got approved or heard of anyone getting approved recently with AC21 filed under 180 days!?

Iam stressed thinking about it.. 'coz, I took a new job after getting laid off from my previous company.

This new job is a govt. job, which means I cannot expect any favours. I have also filed my AC21 in Oct03.

Any info, comments would help. Thanks..

RD: 01/22/03
FP: 03/14/03
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Not a Problem

http://www.immigrationportal.com/showthread.php?s=&threadid=115206
 
waytoolong and tammy2, thanks for your response.

Our attorney seems to be taking forever to come up with the RFE response. Kinda getting impatient and frustrated.
 
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