Job Loss

[pdmarch282008]

Restart GC process with the new company and interfile I-140 ( newly approved ) with the existing I485.

I am a similar position as well. I don't reach 180 days until July end and my job is getting terminated April end. I have an approved I-140 and EAD. Current company will not withdraw I-140. Just wondering what my options area.

[Kanmani]

I am a similar position as well. I don't reach 180 days until July end and my job is getting terminated April end. I have an approved I-140 and EAD. Current company will not withdraw I-140. Just wondering what my options area.

Unless otherwise you extend your employment with the GC sponsor for atleast 180 days from the Receipt date of the I-485 , You must restart your GC and interfile I140 with the already applied AoS.

Please update your signature, it will be easier to answer the questions.

[pdmarch282008]

Unless otherwise you extend your employment with the GC sponsor for atleast 180 days from the Receipt date of the I-485 , You must restart your GC and interfile I140 with the already applied AoS.

Please update your signature, it will be easier to answer the questions.

Kanmani, I updated my signature. Are you sure I need to re-start GC? If company does not withdraw I-140, can't I just use my EAD card to switch jobs and then send in an AC-21 letter after 180 days. I am sure my case will not be adjudicated by then.

[Spectator]

I am a similar position as well. I don't reach 180 days until July end and my job is getting terminated April end. I have an approved I-140 and EAD. Current company will not withdraw I-140. Just wondering what my options area.


Unless otherwise you extend your employment with the GC sponsor for atleast 180 days from the Receipt date of the I-485 , You must restart your GC and interfile I140 with the already applied AoS.

Please update your signature, it will be easier to answer the questions.


Kanmani, I updated my signature. Are you sure I need to re-start GC? If company does not withdraw I-140, can't I just use my EAD card to switch jobs and then send in an AC-21 letter after 180 days. I am sure my case will not be adjudicated by then.

I agree with Kanmani.

Since the sponsoring Employer's position did not exist for at least 180 days, no AC21 portability can exist, even if the I-485 is not adjudicated within 180 days. Somewhere, there is an AAO decision on this.

That's not to say you might not get away with it, but you would be in deep doo-doo if you got a post approval audit or an RFE for an updated G-325A.

The far safer and legal way is to start again from PERM and retain your PD.

[Pedro Gonzales]

Kanmani, I updated my signature. Are you sure I need to re-start GC? If company does not withdraw I-140, can't I just use my EAD card to switch jobs and then send in an AC-21 letter after 180 days. I am sure my case will not be adjudicated by then.

Yes and no. Yes you could do what you suggest, and unless you get an RFE asking for proof that you were working from May through July, you will still get your GC when due, but it wouldn't be strictly legal. So, I'm with Kanmani on this. Switch jobs, ask them to start your PERM, then in about 6 months you will be eligible to file for your I-140 and depending on the then current dates, you can cofile / interfile your I140 & I485.

[bookworm]

Yes and no. Yes you could do what you suggest, and unless you get an RFE asking for proof that you were working from May through July, you will still get your GC when due, but it wouldn't be strictly legal. So, I'm with Kanmani on this. Switch jobs, ask them to start your PERM, then in about 6 months you will be eligible to file for your I-140 and depending on the then current dates, you can cofile / interfile your I140 & I485.

Thank you all for your great input. If i summarize it correctly, the best course of action is to grin & bear till you hit the 180 day mark and then use AC 21 portability. If individual situation does not permit "grin & bear" then negotiate new GC filing with new employer and hope to capture old PD.

[pdmarch282008]

Thank you all for your great input. If i summarize it correctly, the best course of action is to grin & bear till you hit the 180 day mark and then use AC 21 portability. If individual situation does not permit "grin & bear" then negotiate new GC filing with new employer and hope to capture old PD.

It breaks my heart just thinking about how close I am and now having to start the GC journey again. I guess my best bet is to get my employer to keep me on payroll until July end may be through severance etc. This is BRUTAL!!!!

[bookworm]

It breaks my heart just thinking about how close I am and now having to start the GC journey again. I guess my best bet is to get my employer to keep me on payroll until July end may be through severance etc. This is BRUTAL!!!!

Hope everything works out for you.

[Kanmani]

Switch jobs, ask them to start your PERM, then in about 6 months you will be eligible to file for your I-140 and depending on the then current dates, you can cofile / interfile your I140 & I485.

As adviced , new I-140 can be adjoined to the existing pending I-485 anytime, even if the dates are not current.

[Kanmani]

It breaks my heart just thinking about how close I am and now having to start the GC journey again. I guess my best bet is to get my employer to keep me on payroll until July end may be through severance etc. This is BRUTAL!!!!

Try to extend your stay at the current position , there is a good chance for a 3 months extension. All the best!

[Pedro Gonzales]

It breaks my heart just thinking about how close I am and now having to start the GC journey again. I guess my best bet is to get my employer to keep me on payroll until July end may be through severance etc. This is BRUTAL!!!!

You have our sympathies dude. I'd hate to be in your position. You think you're done with everything and then life throws you this googly. But lets take things in perspective. Assuming you can find a similar job (best before your final paycheck) you can port your old PD, which is the most important point here. You do not go to the back of the queue. The best option, as you suggest is to try to get your employer to keep you on the payroll for an additional 3 months through severance. That would be ideal.

[Vikrant]

It breaks my heart just thinking about how close I am and now having to start the GC journey again. I guess my best bet is to get my employer to keep me on payroll until July end may be through severance etc. This is BRUTAL!!!!

You may also want to explore unpaid leave options under the Family Medical Leave Act since payroll is not generated during such leave . You may be able to get 12 weeks to get you though to the 180-day mark.

[pdmarch282008]

You have our sympathies dude. I'd hate to be in your position. You think you're done with everything and then life throws you this googly. But lets take things in perspective. Assuming you can find a similar job (best before your final paycheck) you can port your old PD, which is the most important point here. You do not go to the back of the queue. The best option, as you suggest is to try to get your employer to keep you on the payroll for an additional 3 months through severance. That would be ideal.

Thanks guys. I am going to try to do everything I can to get to 180 days. I'll keep you posted. Twelve years in the country with kids born here, I just can't give up. It's not about us anymore, it's about them :). Gotta get through this rough patch in life. I am glad there's this forum, it's hard to vent out your frustration on people around you who don't understand what one is going through.

[pdmarch282008]

You may also want to explore unpaid leave options under the Family Medical Leave Act since payroll is not generated during such leave . You may be able to get 12 weeks to get you though to the 180-day mark.

This is interesting, thanks Vikrant. I'll explore this option as well.

[qesehmk]

pdmarch - how much severance you got. Because technically you remain on the payroll until your severance runs out. That should cover AC21.


This is interesting, thanks Vikrant. I'll explore this option as well.

[pdmarch282008]

pdmarch - how much severance you got. Because technically you remain on the payroll until your severance runs out. That should cover AC21.

I have to add that there's a chance that one of our sister companies may absorb me. I should know in a few days. Otherwise I think I have may be 1-2 months severance max. I have received nothing in writing yet, it's just based of what people have been given as a severance in the past.

[suninphx]

I have to add that there's a chance that one of our sister companies may absorb me. I should know in a few days. Otherwise I think I have may be 1-2 months severance max. I have received nothing in writing yet, it's just based of what people have been given as a severance in the past.

If you get absorbed in one of sister companies then there are certain measures one need to take w.r.t. GC process. Your lawyer can guide you. Good luck!

[Vikrant]

I don't think this is good advice.

1. It borderlines fraud. Any competent USCIS officer can make a correlation between the strategically placed leave and the need of AC21 portability.
2. What if he started doing a new job meanwhile? Is he going to take a leave of absence and be without a paycheck for 3 months? That's a lot of money to give up - the better option is to simply restart the PERM and recapture the PD. PERM processing takes a few weeks at worst. Concurrent filing will also be an option since his date would most likely be current when he is ready.

In my view, if your project is terminating anyway, it is MORE IMPORTANT to find a new job ASAP and simply move on to that new job. He can keep his PD and do his GC later. Employment need trumps the immigration need unless the circumstances are out of the ordinary.

My 0.02 c.

I am not suggesting or advocating any fraudulent behaviour. It's an option worth exlporing as long as there are no misrepresentations.

[Kanmani]

Vikrant
In India, the unpaid leave is not counted against service. The unpaid leave will show a break in your employment without termination and that 'break' voids the continuity for all purposes.

I have no idea about the above rule in United States , but in my opinion, the employee cannot claim the said period 'working' (technically)

[pdmarch282008]

Vikrant
In India, the unpaid leave, are not counted against service. The unpaid leave will show a break in your employment without termination and that 'break' voids the continuity for all purposes.

I have no idea about the above rule in United States , but in my opinion, the employee cannot claim the said period 'working' (technically)

Just wondering how severance rule's work. Can an employee negotiate severance to be paid weekly thus be considered to be on the payroll or is severance usually paid in one lump sum?

Sorry for getting off topic, I'd be happy to take this conversation on another thread that the guru's recommend. May be there should be a thread for losing job before 180 days.

[Kanmani]

Just wondering how severance rule's work. Can an employee negotiate severance to be paid weekly thus be considered to be on the payroll or is severance usually paid in one lump sum?

Sorry for getting off topic, I'd be happy to take this conversation on another thread that the guru's recommend. May be there should be a thread for losing job before 180 days.

pdmarch282008

I have no knowledge on Severance rule . Hope Guru's will continue with that .

[Vikrant]

Vikrant
In India, the unpaid leave is not counted against service. The unpaid leave will show a break in your employment without termination and that 'break' voids the continuity for all purposes.

I have no idea about the above rule in United States , but in my opinion, the employee cannot claim the said period 'working' (technically)

People working on H1-B visas (or other work visas) are entitled to the same leave benefits as US citizens, including FMLA. Otherwise, an expectant mother on H1-B taking maternity leave would be out of status during such leave and would have to file a new H1-B petition after the maternity leave to reinstate the H1-B status. Just a quick google search lead to this link http://www.klaskolaw.com/articles.php?action=view&id=7

[Transformer]

Any leave of absence (LOA) is governed by the employer's polocies. As a rule of thumb, one should have a continuous employment after returning back from LOA. For the purpose of why we are discussing here, since the person asking the question doesn't have a continuous employment, he/she is not eligible for LOA.

Just from what I understand.

[bhayzone]

Just wondering how severance rule's work. Can an employee negotiate severance to be paid weekly thus be considered to be on the payroll or is severance usually paid in one lump sum?

Sorry for getting off topic, I'd be happy to take this conversation on another thread that the guru's recommend. May be there should be a thread for losing job before 180 days.

I'm tempted to start with the classical reply "it depends" :-)

So it depends on your company policy. In my case we were given a one time severance payout and a two-weeks notice. We received the severance check a week or so after the last day of work by postal mail. A friend of mine who lost his job around the same time as me (from a different company - Fortune 50 I guess) was given a 2-3 months notice ... so he was on payroll for 3 months, not required to work or come to office and was getting paid according the payroll. Had he quit before his last day, the company would have stopped paying him. So basically he did not get a one time severance payout, but the monthly pay was the severance pay. So like I said, it depends on the company policy. If you know anyone who was laid off from your company in the past, they might be able to give you a better idea, as what was true for them will also be true for you. You can check with some of your colleagues if they know anything about the company policy. But the policy will mostly be one of the two - 2-3 months single severance payout with 15 days notice, OR 2-3 months notice without any one time payout.

I was in a slightly better state - got laid off in Sept 2011 and it seemed to be the end of my world, but immediately joined my old employer through whom I already had an approved I-140, got current & filed 485 in Nov 2011 and received GC in Feb 2012.

I hope this helps you and more importantly I hope things work out well for you. No one should have to go through a layoff.