Pending 485- job loss

[EB2Dec2008]

I have a EB2 Priority date of Dec 2008, I applied for my 131/765/485 application in August 2014 for the first time. I received my EAD/AP last week with I-485 application pending. Recently i came to know about the news that my company might fire lot of employees and i might be on that list. What would be my best action plan if that happens? Am i eligible to apply for a job on EAD? Can i travel to India in December 2014 on AP? Do i have to file for AC21 after 6 mons? please advice.

thanks

[imdeng]

Kanmani/Spec/Others will have more specific advice - but in general - the best course of action for you to quickly find some job, any job. Since you have EAD - there is no restriction on you regarding where you can work. Just make sure to stay in similar role as the current one so as to meet AC21 requirements.

You are right on the cusp - whenever the next lot of numbers are released to EB2I, you should be through. Although that might be as late as Aug 2015.

I can imagine how stressful the situation must be for you. Hang in there - matters usually resolve themselves without hitting the worse case scenario.

[sportsfan33]

I have a EB2 Priority date of Dec 2008, I applied for my 131/765/485 application in August 2014 for the first time. I received my EAD/AP last week with I-485 application pending. Recently i came to know about the news that my company might fire lot of employees and i might be on that list. What would be my best action plan if that happens? Am i eligible to apply for a job on EAD? Can i travel to India in December 2014 on AP? Do i have to file for AC21 after 6 mons? please advice.

thanks

At a minimum, you need to find a same or similar job. Also at a minimum, your labor (I140) needs to stay alive. If your labor gets revoked, nothing is going to work and you just need to restart the process and be in status (H1) while all that's going on.

However from the AC21 perspective, I am not sure how if just finding a new job is sufficient. The USCIS will send a current employment RFE to you with a relatively high probability. What happens if they see the start date is < 6 months from the I485 submission? Unfortunately in the current law, that's a ground for denial.

There is a small chance that the USCIS will not send another RFE and just approve your case when your date becomes current again. That used to happen in the past. But unfortunately, they changed the policy on your medicals making their validity last only for 1 year. Judging from this years experience when many 2013 filers got the RFEs, you will also receive a medical RFE almost certainly. Once an RFE is necessitated, the current employment and continuous employment requests are also tagged on the same RFE. TSC does this on 100% of cases; NSC does this on only some cases - that's my understanding. Bottom line - if your application is pending at the TSC, expect the current employment RFE.

Let's say however that you did a job for 6 months in a company B and then at the time of adjudication, you were working in C. Technically, the start date of C is > 6 months from the I485 submission. However, this doesn't bring employer B in the picture. In order to get approval, you will have to lie that you changed employment 6 months after I485, and usually lying to the USCIS does not bring good results. There have been cases where they have revoked green cards after issuing them.

The only thing that works full proof is that you retain your current employment for 180 days after I485 submission. From your post, it seems that you are approaching the 90 day mark already. If there is some way you can talk to the company HR to explain your situation, do that. Companies usually give you a month's pay when they let you go. That can buy you an additional month. It's just a matter of 2-3 months in your case and you need to do everything possible to retain employment for that time.

I will let spec/kanmani correct any of my misunderstanding. If there is another way out of this other than retaining your employment for 180 days, they can tell you.

Good luck,

Edit: I am not sure if AC21 covers involuntary job losses. Since you were let go by the company rather than you jumping ship, you might still have a valid claim to your GC. This is something only kanmani/spec can illustrate. Also, you are not in any immediate danger since your I485 is pending. So you can take your time to find a new job. Travel on AP is also possible with relative ease. Your problem becomes getting your case adjudicated successfully when your date becomes current again.

[Kanmani]

Kanmani/Spec/Others will have more specific advice - but in general - the best course of action for you to quickly find some job, any job. Since you have EAD - there is no restriction on you regarding where you can work. Just make sure to stay in similar role as the current one so as to meet AC21 requirements.

.

imdeng, AC21 does not come into play when you change jobs within 180 days, you have to restart GC process allover again unless there is a EVL available from the original employer for future position (after GC).

Changing jobs on EAD and counting 180 days is a big NO.

[Kanmani]

Sportsfan,

There is no way in the immigration process to just say you are working for the GC sponsor but in the real life you have changed jobs. You must support your statements with copy of the pay stubs ( just remember we do it in the H1b transfer). Moreover we are signing the I-485 form and the annexures stating under penalty of perjury (28 USC 1746), so it is equivalent to lying under oath, which is punishable under the law.

So pretending to be sticking with the GC employer is out of the question.

GC is based on the Permanent Job offer, if the company says the position is no longer available, in a circumstance of no AC21 provisions available, the beneficiary has to restart the GC process all over again. No excuses on involuntary job loses. GC is directly proportional to the Job offer.

After the lay offs the company cannot just go on and start a GC process for the same job position. It is questionable/challengeable by the labor department.

[Kanmani]

The only thing that works full proof is that you retain your current employment for 180 days after I485 submission. From your post, it seems that you are approaching the 90 day mark already. If there is some way you can talk to the company HR to explain your situation, do that. Companies usually give you a month's pay when they let you go. That can buy you an additional month. It's just a matter of 2-3 months in your case and you need to do everything possible to retain employment for that time.


I highly recommend this option !

[gcq]

Here is the AC21 memo. From what I understand, if I-140 is still valid ( till 180 days mark) the job still can be ported. Of course confirm with "competent" lawyers.
http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm122705.pdf
Page #4 last 2 questions



Question 10. Should service centers or district offices deny portability cases on the sole basis that the alien has left his or her employment with the I-140 petitioner prior to the I-485 application pending for 180 days?

Answer: No. The basis for adjustment is not actual (current) employment but prospective employment. Since there is no requirement that the alien have ever been employed by the petitioner while the I-140 and/or I-485 was pending, the fact that an alien left the I-140 petitioner before the I-485 has been pending 180 days will not necessarily render the alien ineligible to port. However, in all cases an offer of employment must have been bona fide. This means that, as of the time the I-140 was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.

Question 11. When is an I-140 no longer valid for porting purposes?

Answer: An I-140 is no longer valid for porting purposes when:
A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or
B. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.

[pdfeb09]

I have a EB2 Priority date of Dec 2008, I applied for my 131/765/485 application in August 2014 for the first time. I received my EAD/AP last week with I-485 application pending. Recently i came to know about the news that my company might fire lot of employees and i might be on that list. What would be my best action plan if that happens? Am i eligible to apply for a job on EAD? Can i travel to India in December 2014 on AP? Do i have to file for AC21 after 6 mons? please advice.

thanks

Since you already have your EAD .. you are allowed to switch jobs in the same or similar position. Your AC21 does not kick in until 180 days have passed.

If your employer decides NOT TO revoke your I 140 even after the lay off, you are safe even without AC21 !! AC21 protects your I 485 in case of 140 revocation (past 180 days) and that's it.

You CAN travel on AP, however, since you must have a job offer in hand when your case gets adjudicated, it is advisable that you do not travel until you have another job.

Filing AC21 after 6 months is up to you. You could wait until USCIS issues an RFE for EVL. It will not hurt to file it though.

[pdfeb09]

imdeng, AC21 does not come into play when you change jobs within 180 days, you have to restart GC process allover again unless there is a EVL available from the original employer for future position (after GC).

Changing jobs on EAD and counting 180 days is a big NO.

Kanmani,

I beg to differ. You would have to restart the GC process again only if the 140 is revoked within 180 days. If this is a layoff situation, the company may be willing to just not worry about revoking the 140.

Changing jobs on EAD and counting 180 days is a big NO, only if you decide to quit the job while the employer still wants you. In that case you end up irking the employer and there is a chance that the 140 will be revoked.

Parting with mutual understanding does not have this issue.

PS: Having said that, I agree with Kanmani and Sports that OP's best bet is to find a way to stick around for at least 180 days. The laws require the company to notify the USCIS of the job losses, especially the ones that require immigration papers.

[Kanmani]

pdfeb09 and gcq agreed.

[sportsfan33]

Thank you gcq.

OP, I think you can relax now. Even if you lose the job before 180 days, as long as your underlying I140 is not touched, you are fine by law.

If it however comes to that, I do recommend get a competent lawyer at the time of adjudication.

Good luck,

[qesehmk]

Even if you lose the job before 180 days, as long as your underlying I140 is not touched, you are fine by law.


This is true. Once 180 days are passed the 140 can't be withdrawn at all for any reasons (only except fraud perhaps). EB2Dec2008 - the situation looks tough for you - I can empathize with it. But I think what a lot of people here are saying is that even if you end up losing job - the chances of your employer going to an extreme to withdraw 140 are very minimal. Remember it costs them to withdraw 140. Its not free.

So as others have suggested just focus on finding same or similar job (in case you end up losing current one). Everything will be alright. Everybody's wishes are with u.

[EB2Dec2008]

Thank you all for your suggestions. I have contacted my company lawyer and they in turn contacted my firm to tell them about the visa status. So at this point of time I have my fingers crossed and I'm hoping they consider the situation and help me