Pending AOS more than 180 days and laid off

[realhyd]

My eb2 based AOS application was filed back in May 2022 and I have received my EAD and AP as a result of that . I was laid off 2 days ago and my employer agreed to keep me on their payroll for 2 months , so my termination date would be April 1st.

 

My question is what if I continue to be unemployed even after my termination date ? My AOS application has been put in Case remains pending state last September as the dates retrogressed, my pd is October 2014 and current eb2 India dates are at October 2011.

 

Will there be a problem if I accrue employment gap before eventually USCIS calls me for an interview??

[Attorney_15]

When someone with a pending I-485 is laid off after their I-485 is pending for 180 days, the person is not protecting their I-485 by pretending to be employed. A person with a pending I-485 for 180 days or more qualifies for AC21 Green Card Portability and is required to have employment in the same or similar occupational classification as the job originally offered on the I-140 Petition that will be the person's job on and after the I-485 is approved.

A situation where someone presents to USCIS that one has an employer and job as the employment they will be working in on approval of the I-485 but simply remains on payroll to delay the termination date is most likely to be viewed as an act of fraud or misrepresentation. These questions come up when a person applies for citizenship and can be raised by USCIS in rescission proceedings to take away a Green Card within the first 5 years post-approval.

Generally, USCIS does not ask for an uninterrupted employment history but when they ask about qualifying employment, having it at the time of the request is normally sufficient. One seeking specific legal advice should consult directly with an attorney.