Summary of Steps To Use 180 Day Rule to Transfer Jobs - Please comment

B

Bongo

Registered Users (C)
Guys,

Having read a multitude of posts, I believe I have
the steps required to transfer jobs using the 180 day
rule.

Step 1: AOS must have been filed for 180 calender days after
        RD.

Step 2: Change to new job using EAD card.

Step 3: You do not need to inform the INS of the change.

Step 4: Just wait.

Step 5: If INS issues RFE then most likely it will be for
        a letter from new company stating:

         Current position title
         Current salary
         Current duties

         and current salary stubs

Comments?

Bongo
 
Looks good - for extra precaution, it wud be gud if new Employer also processes H1. Guys - any comme

 
 
Whoooooooo

Hang on.

What I have been reading is that you should start the new
company on EAD card, not H1, do not do a H1 transfer.

This seems to be a major point of contention. Some people
say start on EAD card, others say transfer your H1 visa
because H1 and AOS are independent.

Is this right?
 
Hey come on guys, comment on this !!!

It will really help those of us laid off and trying to change jobs
 
The question is ...

To use the 180 day rule, do you need to join the new company
on an EAD or H1 Visa.

The other question is, how much time-gap are we allowed
between the two jobs?
 
No Title

On your first questions, read Rajiv\'s comments on the AC21 guidance which appears on the front page of www.immigration.com -

I think his opinion is sound - you should be able to join on an EAD, BUT it is advisable to also get a H1 from the new company, because that will keep you in status in case the 485 is denied. That could happen if the INS decides that your new job is not in the same or similar job category, or due to some other reason in your documentation.

Re. your second question - the time gap is relevant in the following way - if (and only if) you are laid off 180 days after your RD, you can spend as much time as necessary to get a new job between the 180 days date and the date of your final approval, OR date of RFE whichever is earlier.

The obvious danger is this - say you are laid off after 180 days have passed since the RD, you start trying to find another job - but before you can get another job, you get an RFE for payslips etc., after a month or two. Your reply to the RFE will then reveal that you do not have another \'same or similar job\', and that your original employer also does not want to employ you any more - poof - your 485 is history.

If you are laid off BEFORE 180 days have passed from your RD, your 485 is history anyway - a new H1, new LC, new 140 is the only way to go.

So - net-net - the safest course under all conditions is - if you are laid off after filing 485, get a new job on a new H1 - you MAY have a chance of getting your GC based on your old 485, but if that doesn\'t work out, you are at least in status on a H1 and will be able to start all over again, with the only benefit of the old application being your original PD(?).

Any comments on the above?
 
Good idea

So join on EAD card (use this for employment eligibility
on first day) but file for H1 just incase AOS is denied.

This is a good idea.

With regard to your answer to my second question, you are
effectively saying minimize the gap. I spoke to three different
attorneys, one said make it as small as possible, one said
30 days to 60 days is an OK gap, third says upto six months is fine.
Apparently, the last attorney knows of cases where H1 transfers
have gone through with pay stubs that are 4 months old.

I don\'t think if you are laid off before 180 days your history.
A few people have approvals in this very situation and our
company attorney is advising people to proceed with their
AOS filing, even though they will be terminated in two months.
 
No Title

Just to be cynical here, it is possible that the attorneys are saying that just to get rid of the people w/o raising too many tensions.

On the bright side I think that there is a very strong chance that people will get their green card even in that case. CSC seems to operate pretty much open loop these days.

Of course I am the exception, I\'ve been transferred to the local office for interview. I still have a job so I am not complaining too much about the situation (in the current market better a job than a green card :).
 
If laid off before 180 days... ok if no RFE before 180 days get over!!

I remember reading on murthy.com chat script that slow processing is boon for guys who might get laid off before 180 days get over - if CSC does not process 485 by the time 180 days get over then these guys are okay!!

------------------------------------------
A similar reply from recent chat on 8-27-01

Chat User : Are there any approvals for the people who left/were laid off within 180 days of filing AOS?

Attorney Murthy : Since the INS Interim Guidance was only issued on June 19, 2001, it is too early for the INS to issue the approvals under that Guidance. However, we know of examples where a person got the AOS approved when the INS did not ask for an RFE until after the 180 days of AOS but the person had left the sponsoring employer within the 180-day time frame, and presented new employer letter.

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

Another one from 8-20-01

Chat User : I got laid off 2 months after applying for 485. What would happen if I get a RFE (employment letter) before 180 days?

Attorney Murthy : The AC21 law only states that the INS has to adjudicate the case within 180 days. It is not clear if the issuance of an RFE is considered adjudication or not but most INS offices have not been issuing the RFEs within 180 days since they are taking much longer than that. So, in a majority of cases we expect the person to get the GC as long as s/he can show same or similar work with the new employer, if the case is not adjudicated within 180 days.
 
doesn\'t this look simple?

no matter when you\'re laid off, before or after 180 days..
-just use ead to join the new job
-have the old company continue the 485 process(they really don\'t have to do anything to continue) and pretend thats still your primary job
-even if you get rfe, respond to that through old company(wouldn\'t they be courteous enough to cooperate?)
-quit the old company officially when you get approval
 
No Title

no brahma, usually big companies will not co-operate as though ur still on their payroll (when in reality ur not). Small companies might consider doing that favor. But big companies usually play by the book and abide by rules and regulations.
 
No Title

sxm24 is right.

My company refuses to spread the lump of money allocated to
my 60 day notice period over a longer time.

My current salary is 20% more than listed on my I140
and H1 so I thought I would get 60% more time, but
it doesn\'t work that way. They wouldn\'t budge.
 
Another point about H1 or EAD...

Over all yes, it is better to apply for new H1 in any case but may be it is advisable to apply for new H1 if some one is laid off before 180 days of AOS stage. If INS sends RFE before 180 days then there is possibility for the argument of "EAD not valid". Note that staying in US without proper status is to some extent acceptable but working without proper work authorization is a serious offence.

- PCee
 
how about this?

convincing old company seems to be the biggest problem. so what i think you can do is..
if you get rfe, typically you have 3 months of time to respond. and i think your ead would be still valid until the 3 months time is over. considering the current processing times, anyone would have completed 180 days before that 3 months is over.
as soon as you complete 180 days, file i485 from the new company using the old i140 approval
also, respond to the earlier rfe with some kinda documents just to buy some more time and delay the death of old i485
by this time you should be able to get ead(atleast interim) for the new petition, so you can just ignore the old one and focus on the new process.
timing is the key here.

if you didn\'t get rfe at all, then you\'re ok anyway.

my 2 cents
 
Another reason to be on H1...

Another reason to be on H1 -From Murthy Chat...

Chat User : Which is safer - using EAD or getting H1 transfer to change job using 180-day rule?

Attorney Murthy : Once the 180 days have passed since filing the AOS, then it should not really matter as long as the new job with the new employer is in the same or similar field. Some people use the H1B in case the AOS is denied for some reason and that way, they have another back up to live and work in the U.S. Also, if you want to bring in a spouse, then it is handy to remain on H1B status so the spouse can get H4. So which is better depends on the circumstances of each case.

- PCee
 
Couple other relevent ones from Murthy Chat...

http://www.murthy.com/chat0820.html

Chat User : I got laid off 2 months after applying for 485. What would happen if I get a RFE (employment letter) before 180 days?

Attorney Murthy : The AC21 law only states that the INS has to adjudicate the case within 180 days. It is not clear if the issuance of an RFE is considered adjudication or not but most INS offices have not been issuing the RFEs within 180 days since they are taking much longer than that. So, in a majority of cases we expect the person to get the GC as long as s/he can show same or similar work with the new employer, if the case is not adjudicated within 180 days.

Chat User : Dear Ma\'am, Thank you for your excellent service. Will one lose H1B non-immigrant status if one works on H1B with the Green Card-sponsoring employer and, at the same time, work on EAD with different employer?

Attorney Murthy : The INS has stated in one Memo from 1999 that, by working on the EAD with an employer other than the H1B employer, the person no longer is purely on H1B status and needs to use the Advance parole after foreign travel to reenter the U.S. But if the person were to only want to work for the H1B-sponsoring employer after reentry from foreign travel, it is not clear if the INS Memo requires the person to enter on the H1B or the AP.

Chat User : Hello, Ms. Murthy. You have repeatedly mentioned same or similar job classification for switching jobs. How do I find out if the job offer is similar or same?

Attorney Murthy : The only guidance we have so far on the AC21 law, as you may know, is the June 2001 INS Guidance Memo described in our MURTHYBULLETIN article sent at the time to our subscribers as a Newsflash item. The INS Memo explains that the job title and job duties should be similar to the Dictionary of Occupation Titles or DOT or the Occupational Outlook Handbook or OOH, which have definitions of terms, etc. We believe those definitions are too restrictive and the INS should consider a wider definition in its final regulations. We still do not have those final regulations as yet.

Chat User : Hi, my question is about the term "new job offer" after 180 days. Just an offer letter is OK?

Attorney Murthy : Yes, based on the existing INS Memo and the cases we have seen so far, the offer letter should be sufficient.

- PCee
 
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