Does a lay off soon after filing AOS make me ineligible for AC21 and is it is travel risk while using AP ?

[manfrommars]

Greetings  !

Here's my case in short:

-I have an I-485 filed for myself and spouse in the India EB2 category, by a very well world renowned brand name company. My date was current in January 2012 and our AOS were filed the same month.
-After nearly five years of good performance at the same job, I was laid off in Feb. 2012 (within a month of filing AOS).
-My I-140 (approved in 2009) will not be withdrawn.
-I was unemployed for 6 months and after 190 days of I-485 pending, joined another employer on EAD for an exact same job as the I-140/485 petitioning one.

-My case has no other problems like fraud, etc.

 

Here are my queries:

1. Am I not eligible for AC21, because I was not with my AOS filing employer for 180 days after filing AOS ?

2. And if I'm not, if I travel outside the US using AP, do I run the risk that while re-entering, I might be questioned about my employment and that may result in an RFE and a possible denial of 485 ? Can this happen ? How can I eliminate this risk ?

Thanks!
 

[pontevecchio]

1. You need to play it smart and get a Lawyer on board NOW.

2. No. AP is under the authority of the AG.

3. Get a Lawyer Now if you want to salvage the situation. Will the new company file a GC petition for you?

[manfrommars]

Dear Pontevecchio  !

 

Thanks for your reply.

 

1. I think that's what I doing by posting my case here.  What do you think a lawyer will do in my case ? What is there to salvage ? Am I a sinking ship ?

 

2. What is AG ?

 

3. What I have posted is the response from the new company. So, no.

 

Regards,

MfM

[pontevecchio]

You are posting in a forum of lay people. Sarcasm does not suit you as you are the one asking the questions. The thing to salvage is the potential loss of the Immigration Petition with an inability to migrate on the basis of that petition. The loss of your job within a month of filing AOS renders you vulnerable to a denial. If you want a Lawyers take give a Lawyer a call.

[manfrommars]

Thank you again. I didn't intend to be sarcastic. I am looking for a definite answer. That's what I was hoping for.

Is my case indeed open to a denial ? That's what I meant by a 'sinking ship'.

[Belle]

Here is the criteria for eligibility for AC21. Read is like computer code - i.e. if Action requires X>9, don't ask "what about Y<3"? because if it was consequential, it would be listed.

 

For AC21 eligibility you need to meet all of those:

1. Your I-485 petition has been properly filed as the primary petitioner in the EB category.

2. I-485 remains unadjudicated (i.e. no decision is made) for at least 180 days.

3. I-140 is approved or was approvable at the time of filing.

4. Your new job is a permanent (i.i. indefinite in duration) full time (i.e. 40 hours a week) job located in the US.

5. Your new job is in a similar professional classification.

[manfrommars]

Hello Belle  !

Thank you very much for your reply. This is exactly what I wanted to hear. You put it quite nicely. The very reason behind my post was the 'what about Y<3 ' question that my lawyer is emphasizing upon, that is bothering me. 

 

Thanks again and regards,

MfM

[Belle]

You can deal with it two ways - you can tell the lawyer that you are not worried about it and don't want to hear about it unless something goes bad, or you can hire a different lawyer. Generally, when you say 'I am not worried about it' the lawyer would either elaborate why exactly s/he is worried, or just drop it. I personally see no reason to worry. Companies lay off people all the time. Things happen.

[manfrommars]

Thank you Belle again. My lawyers are adamant that because I was laid off within a month after filing 485, I am not eligible for AC21, even though all the 'listed' conditions are met and that my travelling can be a problem. So I should just wait and watch and I may just get through.

I heard from my HR lady that the lawyers are quite conservative and neither she nor the lawyers had handled an AC21 case until my case came along and that my case has been a 'learning experience for all'.

 

Hence I am trying to find out if indeed there is a 'lay off' related clause in AC21 porting conditions. So far I haven't found any. As you say, if it were consequential, it would heve been listed.

 

Thanks a lot once again, for concurring with me.

Regards,

MfM