Unique case: I140 approved, lost job, PD becomes current in Nov'11

[rameshkumarpr]

Hi,

I have a unique situation: currently on H1b, my case was filled under EB2 (India), PD: 30Aug2007, I-140 approved. I've lost my job today as part of huge reduction-in-force (RIF) by my employer. I've got a severance package and i will be on payroll until 30Dec11 (until then i will be on leave of absence). My PD to file 485 will become current in Nov01.

Please help....... I would like to know my options to file 485 using the same priority date and retain my H1b status.

[Belle]

You can no longer file with the same employer, since you don't have a job. Sorry about that. My suggestion is to find another employer, and file a new case. You will be able to retain your old PD.

[mnukanaboina]

Hi, mine also unique case

My previous job EB2 is with the priority date of 29th Oct 2007 and I-140 got approved. Current job is EB3 with the priority date of 30th nov 2009. Since EB2 is current till 01st Nov 2007, mine case also current. So now I am not getting how to proceed. could anyone help me out?. Do I really need previous employer support to file I-485 under EB2?

[GreenDream]

You can no longer file with the same employer, since you don't have a job. Sorry about that. My suggestion is to find another employer, and file a new case. You will be able to retain your old PD.

Bell, what if same situation happend after I-1485 applied ?

[Belle]

Bell, what if same situation happend after I-1485 applied ?

To file I-485 you need to have a job offer from the employer. It must be offered to you at the time of I-485 filing. Once you file, you may wait for approval. However, your employer may withdraw I-140 if they no longer have a job for you (I-140 is a job offer in USCIS eyes). If it you are approved before 180 days are up, you may tell the employer that you are ready to work for them, and if they don't want to hire you back, you are free to work for anyone.

After reading this, you may think this is worth trying, but I think it is not. Filing I-485 when you don't really have a job or job offer is immigration fraud, and the USCIS will punish you severely if they find out.

[rameshkumarpr]

Hi Belle,

I just confirmed from my employer that they are NOT going to revoke my I-140 approval notice. In this case, can I still go ahead and fill I-485 assuming i haven't heard anything about layoff?

Here is a recap of my case:

EB2 (India), PD: 30Aug2007, I-140 approved. My last date with my current employer is 30Dec11. My date becomes current on 01Nov11 and I would like to fill 485. Please advice.

Thanks,

[anothersoul]

Adjustment of Status (I-485) petition is filed when there is "intent" on behalf of the employer to provide a full-time job upon approval of the petition. It also requires the beneficiary to have legitimate "intent" to work for the employer.

There are two aspects you would need to keep in mind.

1. As mentioned, you have lost your employment with the employer. Does the employer have "intent" to provide you a full-time job upon approval of your I-485 position and provide necessary documentation to support your petition? Do you have "intent" to work for the employer upon approval of the petition as per the job description laid out in the PERM certification?

2. I-485 is a petition for Adjustment of Status (AOS), which means you would need to be in some legal status when you file your petition and atleast until you get an EAD. Since you have been on a non-immigrant H-1B visa sponsored by the employer, the employer is required to notify USCIS that you are not an employee anymore which results in you not being in a H-1B visa. Have you made arrangements to maintain legal status in this country?

[rameshkumarpr]

Thank you anothersoul. Here are my answers to your questions:

1. As mentioned, you have lost your employment with the employer. Does the employer have "intent" to provide you a full-time job upon approval of your I-485 position and provide necessary documentation to support your petition?

Ans:NO

Do you have "intent" to work for the employer upon approval of the petition as per the job description laid out in the PERM certification?

Ans: Yes, if he rehires me back (assuming I go ahead and fill I-485 on my own)

2. I-485 is a petition for Adjustment of Status (AOS), which means you would need to be in some legal status when you file your petition and atleast until you get an EAD. Since you have been on a non-immigrant H-1B visa sponsored by the employer, the employer is required to notify USCIS that you are not an employee anymore which results in you not being in a H-1B visa. Have you made arrangements to maintain legal status in this country?

Ans: I agree. I have time until 30Dec to switch employer and transfer my H-1B visa as I will be on payroll until 30Dec. Also, my employer has made it clear that they will notify USCIS to revoke my H-1B visa on 30Dec.

Here I would like to know my other options as well. Let's say I find another employer in Dec for the exact same type of job I was performing with my current employer and transfer my visa. Does my new employer have to file labor again or can I start from I-140/I-485 concurrent filing? Please clarify.

[anothersoul]

I am not sure how you can proceed with I-485 petition if your employer does not have a position available for you and provide necessary documentation to support your petition.

Your new employer would need to start a new PERM process. However, you would be able to retain the Priority date on your approved I-140 as long as the approved I-140 is not revoked for fraud. Your new position doesn't have to be exactly similar.

[rameshkumarpr]

Hi anothersoul,

Thanks for your prompt reply. I really appreciate it.

Thx

[Belle]

I just confirmed from my employer that they are NOT going to revoke my I-140 approval notice. In this case, can I still go ahead and fill I-485 assuming i haven't heard anything about layoff?

A non-revoked I-140 is not enough. Those approved I-140s are dime a dosen (ok, more expensive, but that's the not the point) - thousands of people have them from past employers, but only the ones who have the job offer from the original employer are able to file based on them. For you to be able to file I-485, the employer MUST offer you a permanent job, otherwise it's fraud. I am not joking.This is why the employer needs to provide a job offer or verification letter.

[rameshkumarpr]

Hi Belle,

Thank you for explaining this in detail. I really appreciate it. I will wait to transfer my H1 to a different employer and file I-485. Now, does my new employer have to file Labor & I140 to file I485 or can they file I485 straight? Please advice.

Thanks,

Ramesh

[Belle]

Unfortunately, the new employer will have to file LC and I-140. Fortunately, you will retain the PD, and may be able to file I-485 pretty soon. Trust me, a year of wait won't make a huge difference in your life. Just make sure you pick a good employer. Stuff happens, we just have to deal with it.

[rameshkumarpr]

:-) thanks, Belle. I totally agree with you.

[rameshkumarpr]

Hi Belle,

I would like to re-open this question with a different scenario as I've got a job offer from Company 'C' now and I really appreciate your response.

Nationality: Indian

Jan'00-Aug'00 - Came to US very first time on H1B and worked for 8 months and left.

Jun'01- Came back to US on H1B with new employer.

Jul'04 - Company 'A' filed Labor under EB3 Category and I do have a copy of that approved labor cert.

Dec'06 - Joined company 'B'.

Jun'07 - First 6 Years on H1B expired.

Aug'07 - Company 'B' applied LC under EB2 and I don't have a copy of that LC.

Sep'08 - I-140 Approved with company 'B' and I do have a copy of the I-140 approval notice.

- Current visa is valid until Jan 2013 with Company 'B' and it is also stamped on my PP.

- On 19Oct, I got laidoff from Company 'B'. Will be on paid leave of absence from 19Oct thru 30Dec so will be on payroll until 30Dec.

- Company 'B' confirmed that they will NOT revoke my I-140 approval notice so that I can port my priority date with a new employer (Company 'C').

- On 31Dec, Company 'B' will notify USCIS stating I am no longer with them.

- Currently Company 'C' has offered a job (Systems Manager Position) and willing to do premium processing for H1B transfer.

Question is: With all these facts, will Company 'C' be able to transfer H1B visa successfully?

[Belle]

I see no issues with H1. You should get 3 years based on your approved I-140. B will notify about your H1 ending, but you already transfering it, so it would not hurt you (USCIS generally gives you 60 day grace period anway). It should not really impact your I-140 (because I-140 is for a future job), but even if it did, you would still retain the PD.

Nice work finding a new job! Keep it up, and things will work out. Sorry about the layoff. It sucks, I have been there.

[rameshkumarpr]

Hi Belle, Thanks for your prompt reply. As always you are a STAR!!! thanks again for all your help!

[rameshkumarpr]

He Belle,

I just remembered that my PD is current right now. So, will that affect H1B transfer with company 'C'?

Thanks,

[Belle]

Oh, yeah, you will get one year on H1 or whatever you have currently left (whichever is greater). Sorry. You should talk to your employer about starting a new case soon.

[rameshkumarpr]

Thanks, Belle. Yeah, my new employer has already started but a concern was raised by their attorney that my case will be high likely denied because my PD is current right now.

Actually my ex-employer (company 'B') did assess the impact very well and hand me over I140 approval notice and academic evaluation and advised me to use these 2 docs for H1B transfer. Right now my new employer has filed my case in premium processing and everones waiting, fingers crossed.

Thanks again Belle for all your help! I truly appreciate all your help.

[Belle]

"my case will be high likely denied because my PD is current right now"

No, it should not. You may extend your H1 for a long time while your I-140 is not revoked.

[rameshkumarpr]

Hi Belle,

Thanks again for all your help!!!

Thanks