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AC21 Portability after 180 days of 485 filing AC21 Portability after 180 days of 485 filing. Changing employers without affecting green card process.

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  #1  
Old 12-18-2007, 09:12 PM
demonmustplay demonmustplay is offline
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Post Gap in employment while using EAD

First off, I want to thank IV and all its members for putting every bit of effort in trying to reform US “Legal” Immigration System, which no doubt is broken.

Currently I am on H1B (7th year) and have my green card under process. My I-140 was approved in early 2007 (EB2/India) and during the July fiasco I applied for my I-485 as well. In September 2007 I received my EAD card along with the AP, which I haven’t used yet and have maintained my H1B status.

Based on the dates, today is my 169th day since filing for my I-485, which leaves me with 11 more days to complete my 180days prerequisite.. I understand that after that I can use my EAD to change jobs, provided it has similar duties (profile), etc..

My question is, while using EAD can s/he have a gap in employment? Like H1B, is there a law according to which one has to hold continuous employment for maintaining the legal status?

Example: If for some reason person losses his/her job (after 180 days of filling I-485), do they have to get a (similar) job immediate to maintain their legal status or can they go without a job till the time one finds some appropriate? This is assuming that the H1B is still good but no company is ready to sponsor the visa and they have to use EAD to get another job.

Any help / views on this would be appreciated..

Thanks..

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  #2  
Old 12-18-2007, 09:55 PM
lazycis lazycis is offline
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See
http://www.uscis.gov/files/pressrele...ntrm122705.pdf

Question 14. Must the alien have a new offer of employment at the time the I-485 is being adjudicated under the I-140 portability provisions?
Answer: Yes. The alien cannot still be looking for “same or similar” employment at the time the I-485 is being adjudicated under the adjustment portability provisions. The alien must be able to show there is a new valid offer of employment at the time the I-485 is adjudicated.

So you should have employment offer when your PD becomes current and the USCIS is ready to adjudicate your I-485 (the tricky part is to figure out when it's going to happen ) Until then, you can do whatever you want.
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  #3  
Old 12-19-2007, 12:26 AM
demonmustplay demonmustplay is offline
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Quote:
Originally Posted by lazycis View Post
See
http://www.uscis.gov/files/pressrele...ntrm122705.pdf

Question 14. Must the alien have a new offer of employment at the time the I-485 is being adjudicated under the I-140 portability provisions?
Answer: Yes. The alien cannot still be looking for “same or similar” employment at the time the I-485 is being adjudicated under the adjustment portability provisions. The alien must be able to show there is a new valid offer of employment at the time the I-485 is adjudicated.

So you should have employment offer when your PD becomes current and the USCIS is ready to adjudicate your I-485 (the tricky part is to figure out when it's going to happen ) Until then, you can do whatever you want.
Thanks Lazycis for your prompt reply.

So if I understand correctly, I need to have a job or job offer letter at the time of adjustment-of-status i.e. when US Government is ready to give me a physical Green Card…

The reason I post my original query is because my current company (Call it A) is not doing very well. I am guessing if things don’t change then its just matter of couple of months before they either change my package or worst pull the plug on me. With the current market I am finding it hard to get another job. Said that, if something like this happens and I don’t have a job lined up then am I in trouble or safe for sometime (couple of months)?

Looking at my current situation, my PD is October 2006 and there is no way I will get actual adjustment-of-status before 2-3 years (best case) or longer. If something goes wrong with Company A in next few months then is it ok if I get another offer in about month or two time frame? I.e. Would I be in any trouble if there is a gap of say couple of months between leaving (fired) Company A and joining Company B?

I know that in case of H1B, the visa holder needs to get the job within few weeks in order to keep his pay cycle current. Hopefully that’s not the case with EAD (AC21)..

Please correct me if I am wrong or missing sometime.

Thanks once again.

Last edited by demonmustplay; 12-19-2007 at 12:29 AM.
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  #4  
Old 12-19-2007, 12:30 AM
demonmustplay demonmustplay is offline
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Quote:
Originally Posted by apume View Post
Do you want to take a break and go live in India for some time with family and others? Just curious because I sometimes think of doing it just because I have missed them so much...

Good luck maite!
No apuma..

The reason I post my original query is because my current company (Call it A) is not doing very well. I am guessing if things don’t change then its just matter of couple of months before they either change my package or worst pull the plug on me. With the current market I am finding it hard to get another job. Said that, if something like this happens and I don’t have a job lined up then am I in trouble or safe for sometime (for couple of months)?

Just trying to be safe than sorry. We all have come a long way, paid a great price and I don’t want one small mistake to jeopardize all the handwork.
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  #5  
Old 12-19-2007, 01:05 AM
anilsal anilsal is offline
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Default Not sure

that you can be unemployed until the RFE asking for employment verification during adjudication. Better to confirm it with lawyers.

Would someone be kind to ask here?
http://immigrationvoice.org/forum/sh...d.php?p=207273
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  #6  
Old 12-19-2007, 01:28 AM
JunRN JunRN is offline
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That is a risk. How soon can you get an employment letter once RFE is issued? USCIS will only give you 30 days to submit it and take into consideration that 30 days will count from the time of the notice which will arrive in your mailbox after 7 days or more. So in total, you are looking at only 2 weeks to do it.
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  #7  
Old 12-19-2007, 11:41 AM
jonty_11 jonty_11 is offline
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That thread is closed.

But this a good ques...with no clear answer..

If during adjudication they ask for all W2s and Pay Stubs, they will notice a Gap ..I think unitednations (a users on this forum) had a similar story, search the forum for his posts.
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  #8  
Old 12-19-2007, 11:55 AM
grupak grupak is offline
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Quote:
Originally Posted by jonty_11 View Post
That thread is closed.

But this a good ques...with no clear answer..

If during adjudication they ask for all W2s and Pay Stubs, they will notice a Gap ..I think unitednations (a users on this forum) had a similar story, search the forum for his posts.
Disclaimer: Not to mislead anyone, just my recollection. Still looking, can't find the post yet.

I remember reading unitednations making some argument to the effect of being self-employed, on EAD I presume, in adjustee/AOS status.
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  #9  
Old 12-19-2007, 12:20 PM
gcgalore gcgalore is offline
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Default Changing Status to EAD on current project- non compete agreement

Gurus, I am on H-1B visa doing a project with 'abc' client who is the client of 'X' company and pays to my H-1B employer 'Y', I get paid from 'Y'. I started on this project on H-1B visa but now I have EAD(spouse of primary applicant) and want to change my status to EAD. The X company says that they have non compete agreement with Y company(my employer) and can't bring me on board unless I get email from my employer stating they have no objection me moving to EAD. My employer is not ready to give me that email(for obvious reasons.. after all it is a desi employer).
I want to find out if there is a way out..also I never signed any agreement with my employer..in fact I don't even have a copy of offer letter. The only agreement I have is with X company that I can't go back to the same client for one year, the day I end this project.
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  #10  
Old 12-19-2007, 12:34 PM
meridiani.planum meridiani.planum is offline
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Quote:
Originally Posted by gcgalore View Post
Gurus, I am on H-1B visa doing a project with 'abc' client who is the client of 'X' company and pays to my H-1B employer 'Y', I get paid from 'Y'. I started on this project on H-1B visa but now I have EAD(spouse of primary applicant) and want to change my status to EAD. The X company says that they have non compete agreement with Y company(my employer) and can't bring me on board unless I get email from my employer stating they have no objection me moving to EAD. My employer is not ready to give me that email(for obvious reasons.. after all it is a desi employer).
I want to find out if there is a way out..also I never signed any agreement with my employer..in fact I don't even have a copy of offer letter. The only agreement I have is with X company that I can't go back to the same client for one year, the day I end this project.
what state are you in? In california that non-compete you have signed with X (1 year thing) is pretty much non enforceable; so you might actually be a complete free bird.
Dont know about the agreeement between X and Y, but if you are going to join "abc" fulltime on EAD, even that should not matter.
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  #11  
Old 12-19-2007, 12:51 PM
gcgalore gcgalore is offline
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Default

I am in Boston MA. the problem is the agreement between X company and my employer. X company says they have non compete agreement with my employer which the X company is not willing to share with me. Two things 1. My employer does not want to give me the email liberating me. 2. X company does not want to share the non compete agreement that they have with my employer.
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  #12  
Old 12-19-2007, 01:15 PM
demonmustplay demonmustplay is offline
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Default

Quote:
Originally Posted by JunRN View Post
That is a risk. How soon can you get an employment letter once RFE is issued? USCIS will only give you 30 days to submit it and take into consideration that 30 days will count from the time of the notice which will arrive in your mailbox after 7 days or more. So in total, you are looking at only 2 weeks to do it.
Junrn..

I guess I was not clear enough in explaining my current situation.. My bad

Anyway, currently I am on H1B (7th year) with approved I-140, EAD & AP. My PD is October 2006 which means that my actual adjustment-of-status won’t happen for few more years, guessing that it will only happen around 2010 (best case).

If in Q1 2008 I loss my current job and am not able to find something appropriate till Q2 2008 then I am in trouble?? Is there any law that states “Need Continuous Employment While on EAD (AC21)?? This is in light that my actual adjustment-of-status won’t happen till 2010, as my PD is October 2006.

I think Jonty_11 reply makes sense.. If they ask for W2 then no issues but if they ask for Pay Stubs then I might be in deep shit..
Just guessing.. a letter stating leave of absence might be the golden key?

Any suggestions?
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  #13  
Old 12-19-2007, 01:17 PM
demonmustplay demonmustplay is offline
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Quote:
Originally Posted by meridiani.planum View Post
what state are you in? In california that non-compete you have signed with X (1 year thing) is pretty much non enforceable; so you might actually be a complete free bird.
Dont know about the agreeement between X and Y, but if you are going to join "abc" fulltime on EAD, even that should not matter.
meridiani.planum

Is there any document that in State of CA non-compete aggrement is pretty much non enforceable???

Some light on this will be helpful.
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Old 12-19-2007, 01:58 PM
JunRN JunRN is offline
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Quote:
Originally Posted by demonmustplay View Post
Junrn..

I guess I was not clear enough in explaining my current situation.. My bad

Anyway, currently I am on H1B (7th year) with approved I-140, EAD & AP. My PD is October 2006 which means that my actual adjustment-of-status won’t happen for few more years, guessing that it will only happen around 2010 (best case).

If in Q1 2008 I loss my current job and am not able to find something appropriate till Q2 2008 then I am in trouble?? Is there any law that states “Need Continuous Employment While on EAD (AC21)?? This is in light that my actual adjustment-of-status won’t happen till 2010, as my PD is October 2006.

I think Jonty_11 reply makes sense.. If they ask for W2 then no issues but if they ask for Pay Stubs then I might be in deep shit..
Just guessing.. a letter stating leave of absence might be the golden key?

Any suggestions?
According to AC21 Memo by USCIS, there is no need to be employed during the process. That is pretty clear in the memo. They will not ask for your paystub or W2. What USCIS will ask from you is a valid employment offer of same or similar occupation. However, do not bank on the PD. It doesn't mean that your PD is not current that your AoS will not be processed. Your AOS will be processed regardless of PD. You may receive RFE or request for interview even if your PD is not current.

That is the reason why I'm saying that there is risk of not being employed. How soon can you get an employment letter once you receive an RFE? An RFE usually will have a deadline of 30 days, but due to delay in courier, etc, you got only 2 weeks to respond. Can you get an employment letter that fast?
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Old 12-19-2007, 02:21 PM
demonmustplay demonmustplay is offline
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Quote:
Originally Posted by JunRN View Post
According to AC21 Memo by USCIS, there is no need to be employed during the process. That is pretty clear in the memo. They will not ask for your paystub or W2. What USCIS will ask from you is a valid employment offer of same or similar occupation. However, do not bank on the PD. It doesn't mean that your PD is not current that your AoS will not be processed. Your AOS will be processed regardless of PD. You may receive RFE or request for interview even if your PD is not current.

That is the reason why I'm saying that there is risk of not being employed. How soon can you get an employment letter once you receive an RFE? An RFE usually will have a deadline of 30 days, but due to delay in courier, etc, you got only 2 weeks to respond. Can you get an employment letter that fast?
Thanks again for the information..

Do you know if that memo is available online, stating that “there is no need to be employed during the process”? A link would be helpful.

I was under impression that till the time your PD is not current, USCIS won’t even touch the file. If AOS is processed before the PD is current, does that mean there is a possibility of getting GC sooner?

If they do process my AOS without current PD and I’m out of a job then I might be able to get an offer letter from my cousin’s company, if that’s the only thing they need.. Hopefully they wont ask for financials as that might be bit tricky.. my cousins company is small (one-man-army)..

What do you think?
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