Strange situation.....need help!!!

A

an_anonymous

Registered Users (C)
Hello All,

I am in a strange situation. Need some expert advice. Here are the details:

Filed for I-140 at VSC using Labor Substitution (a week ago). My original labor (in VA state) is stuck due to April 2001 pending cases. Hence used the Labor Substitution path.
I-485 not yet filed.
Company going through a lot of restructuring/layoffs. I have been informally notified that I will be laid off in May/June 2003.

What should I do now?? If my company supports me for my processing, should I file my I-485 ASAP?? What should my company do to protect my status/Green Card going.... Can they still continue with my GC processing after getting laid off.....what happens in the event of an RFE in I-140 and then in I-485.

Please take a minute and help me with your valuable suggestions.

Thanks in advance
 
You should file I-485 concurrently ASAP for the below reasons.

1. I-140's are getting relatively faster with concurrent filings. So there is high chance that your I-140 will be approved by may/june. And if you file I-1485 immediately you finish 6 months by june to use AC21 and change the company with out affecting your GC process. Remember to file EAD also with your I-485( there is a chance that your I-140 get approved faster). Even if your I140 is not processed in 6 months if you are lucky( and don't get RFE) you may get through your GC process.
2. If you wait I-140 to be approved for filing I-1485 - It is almost certain that you can't use AC21 and change jobs in June.
 
Thank You

gcinfo1971,

Thank you for your quick response. That was some sigh of relief. Now I have to pursuade my company to file my I-485 immediately.

I still had one more concern: Assuming that my I-140 gets approved within the time I depart from my current company with/without any RFEs, what happens in the event of a RFE in I-485. Because by then, I wouldn't be with the company....right?? How would I go about answering the RFE obtained for I-485?? Do I need the support of my company to do it or I can address it with the help of my attorney itself?? I have this concern, because there could be RFEs wherein it might involve the details of the Company too right??

Is it possible to process my I-485 (me and my attorney) without keeping my company in the loop after I get laid off.

Thanks
 
I-485 is your filing and company lawyer is just helping you( Your are his/her client). So you would be able to answer the RFE wherever you are. And you can always change the lawyer if you want at any time in future.
 
an_anonymous,
Usually when you a get a RFE and reach the deadline given to you to reply to it, you will be past 180 days from the date of I-485 filing. So you can conveniently use AC21 and show the employment proof from your new employer to INS (hopefully you have a job by then, thru H1B or EAD).
There are numerous discussions related to this topic under I-485 issues/Portability thread in this forum. They will provide a great insight about all the possibilities.
Hope this helps!
 
an-anonymous,

As mentioned by others, all you need is the copy of your I140 receipt to file for I485. You don't need the company to do it for you. So, file for I485 an I765 (EAD) ASAP and you will get an EAD which will allow you to look for a job (and hopefully find one) by the time you are laid off.
 
Are you guys sure that you can use AC 21 with concurrent filing. Because INS has not yet published rules for that. I think nobody is certain whether concurrent filers can use AC 21 portability. If you guys have some info or URL's about this then please share it with others.

Thanks in advance !!
 
an_anonymous,

I was intrigued by the Labor Substitution Path you mention in your message. Of course, I am going through the pain of waiting for my Labor approval as well.

I would appreciate it if you could enlighten me on this procedure so I may consider providing it as an option to my company lawyers as well.

thanks
 
puneet_gcard,

It looks like it's possible for concurent filers to use portability.

Go to:

http://www.murthy.com/chat1202.html

Chat User : Hi. I want to know if I can use concurrent I-485 and I-140 filing and benefit from the new "portability of employer." My understanding is that there is some restriction on this. Is that true?

Attorney Murthy : There is no restriction of which we are aware. The only concern is that the AC21 law was enacted originally before concurrent filing was allowed. The INS senior officials have mentioned that concurrent filing does not and should not change any AC21 laws, so we think it should not pose any problems, except for the risk if the employer withdraws the I-140 prior to approval. Without any regulations, no one can be 100% sure, though.


spidey,
Labor Substitution is using an approved labor for the same kind of job and for a person of same or better qualification and experience and same salary.
You can find out if your company has any approved labor (meaning the labor approval was not used for whom it was applied ) and you can try to use it.
 
Young16.

Without any regulations, no one can be 100% sure, though

Judging from this line I am still not sure if we concurrent filers should risk this unless we dont have a choice. Although I wish the rules are finalized for concurrent filers one should be careful at not assuming that this would work.

Thanks for the URL. I had also checked it out earlier but was not fully sure about portability.
 
Although no one can be 100% sure with INS, and I am no immigration lawyer, why should concurrent filing affect Ac21? ie if somebody used concurrent filing and somebody else didn't, should they be treated differently?

I think the only grey area is whether the six months of pending starts from when the I140 is approved or the I485 is received by INS. Without concurrent filing, you needed an approved I140 before submitting I485. So you had to wait for I140 approval + 6 months pending I485. With concurrent filing, I would imagine that as long as your I140 is approved, then Ac-21 should hold in an equivalaent timeframe.
 
VHOOLOO !!

I totally agree with your view on this. But what I am saying is that we shouldnt make any conclusions before INS publishes these regulations.

In case they say that it will be 6 months after 140 approval then in that case this scenario will not work for an_annonymous.

Because he wont have that much time left.

As I have said in previous threads also I wish INS publishes these regulations and makes it clear to everyone.

But I think they have not even published final regulations on AC 21 yet so God only knows when they will publish these regulations for Concurrent Filers !!!
 
INS has stated (they do not seem to be following this in all cases so it is very up in the air right now) that it will not approve I-140s for concurrently filed cases until it adjudicates the I-485 (again, I know that they are not following this in some cases, I'm just reiterating what INS has said) and that the 180 day clock for AC21 purposes would not start until the I-140 is approved. This effectively would mean that AC21 would not apply to concurrently filed cases since the I-140 and the I-485 would be approved at the same time.
 
Hi JIM.

This is exactly what I was afraid of. But I still dont understand the following things:

a) Why is the processing times for 140 just 6 months and 14months for 485. Shouldnt the INS specify the same processing times ?

b) Why are they approving cases for concurrent filers for 140?

c) Would concurrent filers then be able to get EAD or not ?

d) Where can we get this info that you are mentioning.

Thanks !!
 
Originally posted by Jim Mills
INS has stated (they do not seem to be following this in all cases so it is very up in the air right now) that it will not approve I-140s for concurrently filed cases until it adjudicates the I-485 ....
Click to expand...

I'm a concurrently filer with 140/FP done. If that's true, than I'm just on the FBI/Holiday delay, instead of the regular 485 queue, which commonly said at last Oct :D
 
a) Why is the processing times for 140 just 6 months and 14months for 485. Shouldnt the INS specify the same processing times ?

Because not all cases are filed concurrently and some I-140s are then followed by Consular Processing.

b) Why are they approving cases for concurrent filers for 140?

Because they are not doing what they said they were going to do. I have no idea why.

c) Would concurrent filers then be able to get EAD or not ?

Yes, they have a pending I-485 and that is all that is required for EAD.

d) Where can we get this info that you are mentioning.

I believe it is posted as www.usvisanews.com. It's also on the AILA website but I think it is in the members only area.
 
Thank You All

Jim, tyzh, puneet_gcard, vhooloo, young16, gcinfo1971: Thank you all for your comments. Looking at your comments, one thing which is still up in the air is regarding the validity of AC21 in case of Concurrent filers. Hope INS comes out with clear definition of this rule as it applies to concurrent filers.

spidey,

young16 has replied to your question.

Thanks again to all of you,
an_anonymous.
 
This is what my lawyer had to say..

an_anonymous,

When I asked a similar question to my lawyer, here is what she said

"The best protection you can give yourself with regard to the FMPs you have already done, which is to file the I-485. While it is not an absolute certainty that INS will apply the rule regarding portability to concurrent filings, the law suggests that they HAVE to, as we discussed, so once your adjustment is pending for 180 days you may have some protection in terms of an FMP or a move to another company."
 
HI gcinfo1971. Your lawyer is probably right on it.

But the reason why I wont buy it is because nobody knows for sure what INS would do. It is just a pure guess. Like Jim was saying that they arent supposed to approve 140's but they are still doing that for concurrent filers.

I feel this whole process is so inconsistent that we can have endless discussions but in reality INS might take a new direction.

If I was in ananoonymous's shoes I would still go ahead and take a chance and file concurrently because what do I have to lose.

With some luck he could still get his GC.

But I feel if one is secure in his job then one should still go the regular way because then for sure one can use AC21.

So I think I made a mistake to file concurrently.
 
Jim and others,
Iam a concurrent filer as well my GC is for future employment.
1) Can I use my EAD to work for another employer
1.a) before 180 days of I140 approval?
1.b) after 180 days of I140 approval?

PLEASE HELP
 
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