Sassyjaybabe

I am unsure if this has been asked before and I am having difficulty in locating any threads.

The situation we are in is that my hubby had his green card filed eventually in July this was after a lengthy process of getting it passed by the labor authority and also the lawyers being slow. To give you an idea we started all this in November 2012.

My hubby is on an l1a visa, he was on l1b before. Given that they went the labor authority route we assume it was filed as l1b.

Strangely his company made great effort in getting it filed quickly right at the end and it was filed 10th July.

He was advised at end of July that the company was laying him off on 15th September and he has been on garden leave since.

We have been to the uscis to do our biometrics two weeks ago. I have an ead which was processed prior to all this and arrived in July.

At this point we have not received the ead and advance parole, on 10th September that will be 60 days (which is how long it took for my ead not tied to green card to arrive).

His company have declined doing the premium processing even though my husband has said he will pay the $1250.

They have said that the lawyer would have to authorize the premium processing.

His company will pay his redundancy money and half of a relocation package.

We have been told that the green card should take 4 months so would likely arrive in November.

We have a lot of questions and don't even know where to turn.

Given that the green card is linked to his position and that position does not exist after 15th September where so we stand in regards to the green card?

Should we receive the ead and advance parole, where do we stand in regards to my husband getting a job with another company?

If the green card/ead/advance parole is a no go because the company have laid him off how long do we have before we have to leave the country?

Our visas expire in July 2019 but are tied to his company, my ead is July 2016.

Any advice on whether he can even work for another company or whether we are forced to leave? Help.

ian-mstm

To start, get yourself an attorney not associated with the employer. The lawyer you've been talking to works for the company... not for you.


The moment the I-485 was filed, he was allowed to remain in the US under "color of law" until such time as it's adjudicated. This would be true whether his visa is valid or not. If your name is on the application, you can also stay.


If you both get EADs, you can both work for whomever you please.


This is not an issue, because you are allowed to remain in the US until the I-485 is adjudicated. You do not have to leave, even if he no longer works for his sponsoring company.


Did your husband file for an EAD when the I-485 was submitted? If not, he should apply right now - it will not cost anything for him to file.

Ian

Sassyjaybabe

Yes he has applied for the ead/advance parole.

Our concern is that the I140 petition lies with his company who laid him off and has not yet been approved. It has been filed as of 10th July.

Would this mean we have to leave seeing as his position no longer exists as of 15th September? Is it likely that uscis would deny on this basis?

Any suggestions on lawyers to speak to?

jxv73

Since the I-140 is for future employment, the current employment status does not matter, but there should be a good faith job offer in place - which does not seem to be the case.

One option is to slow down the process so that AC21 portability kicks in.

Definitely talk to an experienced business immigration lawyer.

While your AOS is pending, you do not have to leave the US. Your EAD also remains valid.

Also see question number 10 in this document

The basis for adjustment is not actual (current) employment but prospective
employment. Since there is no requirement that the alien have ever been employed by the petitioner
while the I-140 and/or I-485 was pending, the fact that an alien left the I-140 petitioner before the I-
485 has been pending 180 days will not necessarily render the alien ineligible to port. However, in all
cases an offer of employment must have been bona fide. This means that, as of the time the I-140
was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have
had the intent to employ the beneficiary, and the alien must have intended to undertake the
employment, upon adjustment. Adjudicators should not presume absence of such intent and may
take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in
appropriate cases additional evidence or investigation may be appropriate.

zerlesen

This is the right thing to be concerned about. Unfortunately, even if the I-140 had been approved, the timing does not appear to be such that you will be able to benefit from "AC21" portability (which requires an approved I-140 and an I-485 pending for more than 180 days).

Might be worth checking with a lawyer to see about the specifics of your situation, but your husband needs to be looking around for another sponsor.

Sassyjaybabe

I-140 and I-485 EAD AP all filed at the same time. They said because from UK / EU no need to wait for I-140 to be approved first. CIS service station completion goal is 4 months from filing. Only concern from Attorney representing company is that if CIS contact them after his termination of employment they will not respond because they no longer represent him or company. They say failure to respond will result in Denied application. Seems like only option is to stay with company some how until I-140 is approved. However, what is the point of EAD if on L1 visa?

Steve_

Not strictly relevant as only a few nationalities have a waiting list, what EB category is he in exactly?

Well obviously if you can get him to remain on the payroll for a few more months that would help... the EAD is to allow you to work while the AOS is processed. Although presumably as L-2 you already had one, which is not usually the case.

You should leave immediately but there is a difference between "out of status" and "unlawful presence". Once he's laid off, he's "out of status" but you don't accumulate unlawful presence until something triggers it off, e.g. going past the date on the I-94. Erm... denial of AOS I'm not sure would be enough because L-1 is dual-intent so you can show immigrant intent.

Sassyjaybabe

His company has refused to extend him on payroll but he has applied for 16 jobs with the same company which would all require relocating areas and is waiting on responses. He has also applied for and had phone interviews with many other companies and a face to face with a company who really liked him but when they asked if he could work for them at this time tabs he explained the situation he heard nothing more. Obviously they were wary about becoming a sponsor.

We applied for my ead linked to the visa as soon as we got the visas renewed butt then about a week after we got news that the company were to he laying him off and because we knew a new job could be elsewhere for him I haven't been actively looking for a job. Another ead with ap has been requested for me as part of the green card process.

He is eb2 category and our i94 is valid until April 2016.

We are getting in touch with a lawyer tomorrow and we are also going to speak to a couple of people who we know have knowledge of immigration.

Thankfully we moved to a place on a month to month basis back in May so at least that's one less thing to worry about.

What would happen if for example we received the ead/ap next week?

Are we stuck in the country at this point until we receive those documents? Ie. If we leave would we need to come back in on an esta?

We have aa child who was born here, she isn't even two though. I am I correct in thinking that until. She is 18 or 21 her being a US citizen would mean nothing for us?

I unsure what AOS is so will check that out..

zerlesen

Adjustment of Status, ie changing from nonimmigrant to immigrant, ie what you're currently trying to do.

Don't leave without AP! The visas you currently have are toast, so if you leave without AP you'll be abandoning the whole process. If your husband was still in his L-1 job this wouldn't be the case, but he can't re-enter using that visa if he's not going back to the applicable job.

Just like your visas, the dates on your I-94s became moot once the job went away. If not for the fact that you have pending I-485s, you'd be having to leave the country right now.

As has been pointed out, employment-based AOS is adjudicated on the basis of prospective future employment, not current employment. This does mean that at least the petition hasn't just disappeared in a puff of smoke, but it's still a major problem, because right now the I-140 job doesn't exist either in the present or the future.

Sassyjaybabe

He has been having interviews constantly and a few are with the same company but in a different location so hoping something comes of that.

If another company employs him do they need to change the petition to their name? Ie they are the new sponsor?

hungryhorace

I believe the advice often issued here is to say you are authorised for work, and just leave it at that.

Of course, the reality of the situation is often lost on the academic stance on this issue taken by some posters (hello Ian!

hungryhorace

Where are you based?

zerlesen

Generally speaking, I'm afraid there's more to it than that.

I don't want to make any categorical-sounding statements because they'll end up being wrong (eg above I said AC21 porting requires an approved I-140; according to the memo provided by jxv73 that's not necessarily the case - note that this still may not help you) so I'll fall back on "ask a lawyer". It's a complicated area filled with potential or actual dangers - good luck.

Sassyjaybabe

I will get in touch with a lawyer today I think! Thanks everyone!

N1cky

We've been through something similar to this twice now, the 2nd time, earlier this year, was very similar.

First, I'll echo what others have said, and take independent legal advice. As every case is different, and it makes you feel better hearing it from a lawyer rather than a bunch of strangers on a website.

We were a little further down the GC road than you, we'd already got our AP/EAD cards, had an RFE and been denied. We filed the application to reopen on February 21, a couple of days after the filing my husband was made redundant effective May 1.

The employees lawyers set up a call for the following day to tell us that 1) they were not our lawyers, but worked for the company and to immediately get independent legal advice 2) they had no obligation to tell USCIS that effective May 1 he no longer worked for the company, but if USCIS sent out a further RFE, they would be obligated to tell them that he would be terminated on May 1, which would immediately result in a denial of the application 3) If a denial came back they would no longer be fighting it 4) If no decision was made before May 1, they would be obligated to let USCIS know he no longer worked for the company, so an automatic denial.

We did take legal advise, and spoke to someone who comes highly recommended on these forums. Unfortunately, the news wasn't good.

As we had always been here on L visa's (and never on a H), if my husband found a job with another company it would be virtually impossible for him to take the job and work legally as we were outside the H visa window (as are you). He did give us a couple of numbers for lawyers who specialized in trying to make something like that happen, but he said it was a very slim shot and the lawyers would be very expensive with no guarantees. We decided not to pursue.

We asked how soon we would have to leave, as we would like our daughter to see out the school year (so potentially 6 weeks after our visa status ended), he told us that there is no set in stone timeframe, but it had to be before the I94's expired, and although he would never recommend anyone to leave it say 10 months, there was no actual fixed date that it became unacceptable. He said he didn't see a problem with us remaining for that length of time, but to probably leave shortly afterwards.

The best active option for you, as you've only been here on your L visa's for a couple of years (we had been here over 6 years so this wasn't much of an option for us, but what we did after the first redundancy when we hadn't filed our GC's), is to get another job within the same organization. You can then re-file your L visa applications (if necessary) and then port your GC application to the new role.

The only other option you have is to sit and wait it out, and hope the I-140 is approved before he officially doesn't work for the company. This was basically our only option, and luckily for us it worked out, but like I say, we were much further down the road, and out of any other routes.

Sorry you are going through this, I know how crap it is. Let me know if I can try answer any questions.

Hope all this makes sense, I've written it in drugged up, cold infused haze.