I485 Applied & Employer Going out of Business

[kquestion]

I want advice on my situation.

My PD is Dec 2007 with EB2 category and now my case has become current. I applied for last stage I- 485 on Dec 1st 2011 and service center is NSC. I got my Finger print appointment for Feb 10, 2012.

I received my EAD/AP on Feb 1st, 2012. Now my employer is throwing a twist and he says that he can't support me or do my payroll, etc. and is asking me to transfer to some other employer as they can't keep the business, which implies that they are going out of business or something like that. I am not sure of the reason.

Hence my question or dilemma is what will be my situation as I can't transfer to new employer as I need to stay with current employer for 180 days of my I485 filing? What are the options available to save my H1 as well as save my GC as I am in the last state of GC and almost closer to getting my approvals looking at the current pattern. I request your advice for the options available for me.

I would be grateful as this is very critical for me.

[pontevecchio]

"as I need to stay with current employer for 180 days of my I485 filing? "

Why? Wait for the GC approval. Then report for duty and ask him to give it in writing that the job is not available. Then join any other employer in the same field and move on. Please spend some money on a Lawyer. You may be surprise to learn you are not exactly in trouble.

[Belle]

You can't change your green card sponsor for 180 days, but you can work for whomever you desire in the meantime. You are only supposed to work for your sponsor after the approval (and again you can change your sponsor after 180 days of I-485 pending).

Obviously, your employer does not sound like someone worth working for. Find a better job. Figure out how to arrange papers later.

[tummyroad63]

If there is no bonafide future job offer, isn't it true that I485 should be withdrawn?

Correct me if I am wrong, but it sounds like if OP obtains Green Card through current employer, it would be obtaining green card via fraud / misrepresentation.

Can experts or attorneys can suggest alternative ways to get around this issue?

[Belle]

No, the employer should withdraw I-140 (which will trigger the denial of I-485 if pending under 180 days) if there is no longer a job offer. I don't think there is any obligation for the beneficiary or fraud as long as the petition was properly filed, i.e. there was a job offer at the time of filing.

[pontevecchio]

The fraud would be by the employer and not him as he is willing to work on approval. On the other hand if the I-1`40 is revoked the AOS wil be denied.

[tummyroad63]

Hmmmm !!!... I485 filed, within 2 months, employer going out of business, so there is no future job offer and beneficiary can still continue processing I485? and it won't be fraud or misrepresentation or unethical on beneficiary's part?

[pontevecchio]

Impressions are not facts. The OP needs to talk to a Lawyer with all the facts involved. You are making quite a lot of assumptions.

[Belle]

Hmmmm !!!... I485 filed, within 2 months, employer going out of business, so there is no future job offer and beneficiary can still continue processing I485? and it won't be fraud or misrepresentation or unethical on beneficiary's part?

Why would it be fraud? The petition was properly filed. The USCIS may request the petitioner to confirm the existence of the job offer on any day I-485 is pending. Unless the USCIS asks, there is no obligation to tell.

[tummyroad63]

Why would it be fraud? The petition was properly filed. The USCIS may request the petitioner to confirm the existence of the job offer on any day I-485 is pending. Unless the USCIS asks, there is no obligation to tell.

If employer is going out of business, there is no future job offer. No future job offer equals no AOS through EB2/3 category plain and simple. It definitely amounts to obtaining green card by fraud or misrepresentation and is certainly unethical.

If there is no future job offer in this case I485 application has to be withdrawn, wheather there is obligation to do that or not. Otherwise it amounts to obtaining green card by misrepresentation, fraud peroid.

Impressions are not facts. The OP needs to talk to a Lawyer with all the facts involved. You are making quite a lot of assumptions.

OP definitely needs to talk to lawyer about what other options he has to get green card. I am sure there are many options out there. It would be unethical and fraudulous to continnue with this AOS if there is no future job offer.

[dknight]

If employer is going out of business, there is no future job offer. No future job offer equals no AOS through EB2/3 category plain and simple. It definitely amounts to obtaining green card by fraud or misrepresentation and is certainly unethical. If there is no future job offer in this case I485 application has to be withdrawn, wheather there is obligation to do that or not. Otherwise it amounts to obtaining green card by misrepresentation, fraud peroid. OP definitely needs to talk to lawyer about what other options he has to get green card. I am sure there are many options out there. It would be unethical and fraudulous to continnue with this AOS if there is no future job offer.

The OP didn't lose his job nor he hasn't received anything in writing about his employment termination. The OP certainly doesn't need a lecture on ethics, he is just asking some legal advice.

[Belle]

If employer is going out of business, there is no future job offer. No future job offer equals no AOS through EB2/3 category plain and simple. It definitely amounts to obtaining green card by fraud or misrepresentation and is certainly unethical.

If there is no future job offer in this case I485 application has to be withdrawn, wheather there is obligation to do that or not. Otherwise it amounts to obtaining green card by misrepresentation, fraud peroid.

OP definitely needs to talk to lawyer about what other options he has to get green card. I am sure there are many options out there. It would be unethical and fraudulous to continnue with this AOS if there is no future job offer.

Did you really write this - should be withdrawn, whether there is obligation or not? As in "should be done, whether it should be done or not"?

I think you need to learn a little bit more about US immigration laws and how they are implemented by the USCIS. Properly filed petition is a properly filed petition, period.

[tummyroad63]

The OP didn't lose his job nor he hasn't received anything in writing about his employment termination. The OP certainly doesn't need a lecture on ethics, he is just asking some legal advice.

I am sympathetic about OP's situation. "Lecture" is not for OP. Its an argument for advanced members' suggestions. Remember not getting green card or getting it a little late is not end of the world. Getting it legally and in right manner is important. I am just presenting a view point. There are many options out there to get green card. By the way, this site is not meant for "legal advice".

[tummyroad63]

Did you really write this - should be withdrawn, whether there is obligation or not? As in "should be done, whether it should be done or not"?

I think you need to learn a little bit more about US immigration laws and how they are implemented by the USCIS. Properly filed petition is a properly filed petition, period.

If there is no future job offer, petition needs to be withdrawn, plain and simple. Its a moral and ethical obligation. Does USCIS have specific directives about these types of situations? If yes, then OP and of course followers of this thread need to know about those directives. If there are no directives, then I485 needs to be withdrawn.

Have you heard anything about recent increases in post I485 approval audits? .

There is no controversy about properly filed AOS. Argument is about loss of future job offer after I485 filing. Is there any law regarding it? If there is do you mind sharing here?

[Belle]

Yes, let's throw big fancy work like unethical and immoral here. Then, let's go back to work, charge a new H1B for his visa, make him sign an agreement to pay exhorbiant fees if he leaves within 5 years after his green card approval, and then make him work 60 hours a week (gotta be happy he's not on a bench, right?), and hide his papers from him so he does not change jobs.

There is absolutely nothing wrong here. The petition was filed properly, and if there is no job after 180 days, the beneficiary may change the sponsor under AC21. If the petition is approved in under 180 days, the beneficiary should offer the sponsor to work for them. If they can't hire the employee, he is free to go work for anyone. Simple as that.

[tummyroad63]

Yes, let's throw big fancy work like unethical and immoral here. Then, let's go back to work, charge a new H1B for his visa, make him sign an agreement to pay exhorbiant fees if he leaves within 5 years after his green card approval, and then make him work 60 hours a week (gotta be happy he's not on a bench, right?), and hide his papers from him so he does not change jobs.

Relevance ? Context ?

With immigrant visa numbers being scarce, is it right thing to do? If OP follows your advice of continuing with this AOS, (if there is no future job offer), he is not only commiting fraud but also depriving other benefiaiciary in line of his/her immigrant visa number

There is absolutely nothing wrong here. The petition was filed properly, and if there is no job after 180 days, the beneficiary may change the sponsor under AC21. If the petition is approved in under 180 days, the beneficiary should offer the sponsor to work for them. If they can't hire the employee, he is free to go work for anyone. Simple as that.

Absolutely don't agree with this. Don't assume that I485 will be pending for more than 180 days. Please show specific USCIS directives on this issue. If there are no specific directives, better to be on safe side rather than pursuing current AOS, where there is no future job offer. You haven't answered my question on post I485 approval audits.

[pontevecchio]

"You haven't answered my question on post I485 approval audits."

Please post your question in a separate thread. Stick to answering the OP.

[tummyroad63]

"You haven't answered my question on post I485 approval audits."

Please post your question in a separate thread. Stick to answering the OP.

Its not a different question. It is related to OP's issues. Please go through OP's posting again and you'll realize why I raised that question. By the way do you know the answer?

[Belle]

Sure, if there was a flood of I-485 approval audits, at least one case would have been posted here...

It is also nice that you seem to think that everyone is supposed to back their fairly common position by quotes from the USCIS regulations, while you can propose absolutely insane radical actions, claim that everyone must do them, but the same burden of proof does not apply to your suggestions. Or do you actually have something to back up your claims?

[pontevecchio]

Doc? Are they not keeping you busy? Even though you did not ask politely I will tell you that random audits of approved AOS cases is being conducted.

[tummyroad63]

Doc? Are they not keeping you busy? Even though you did not ask politely I will tell you that random audits of approved AOS cases is being conducted.

With new company merger, etc its not as busy, but will be busy soon. Thinking of changing career - planning to go to law school and become immigration attorney once I get permanent residency ( 6 months later). Thank you for the answer on post AOS audits and sorry if I came across as non-polite person.

[tummyroad63]

Sure, if there was a flood of I-485 approval audits, at least one case would have been posted here...

It is also nice that you seem to think that everyone is supposed to back their fairly common position by quotes from the USCIS regulations, while you can propose absolutely insane radical actions, claim that everyone must do them, but the same burden of proof does not apply to your suggestions. Or do you actually have something to back up your claims?

My proposals are not isane or radical. It is just common sense. No future job offer equals no green card whether AOS has been filed or not.

I am not an expert in this field, as you can see from the number of posts that I have posted. But it just does not make any sense and in my opinion it is illegal to continue with AOS application knowingly, if there is no future job offer.

USCIS may not have specific directives for EB AOS for OP's situation, that I am aware of.

But, USCIS definitely has specific directives for somewhat similar situations in FB AOS. When petitioner dies, beneficiary has to withdraw AOS or AOS gets revoked and of course there are alternative ways to pursue permanent residency pathway. Google "petitioner died, what happens to AOS".

.

[Belle]

"When petitioner dies, beneficiary has to withdraw AOS or AOS gets revoked"

Not any more. President Obama signed a law in 2009 that allows continuing premanent residence petition if the immigrant petition (I-130 OR I-140) was filed in good faith and the prinipal beneficiary or sponsor died. Google it :-)

[murphyd]

yes he can lol