Teich

Ingo:

I have some breaking news! I just spent a half-hour with the company's
immigration attorney. Basically she strongly believes, in my case, that a
pending I-485 without a valid H-1B is not a valid status AT ALL. I believe
that her interpretation of the law tends to be conservative. She is
recommending me to i) withdraw the I-140/I-485, ii) file an I-539 to switch
to B-2 (asking for 3 month's time), which takes about 3 months to
adjudicate, and iii) transfer to a new H-1B within 2.5 months if I find a
new job.

Using her conservative approach, she believes that I will be able to
transfer my H-1B with 2.5 months before the BCIS gets the chance to deny my
I-539.

Since my last day is next Thursday, I have to act fast. If I am filing the
I-539, I want to mail it off on Tuesday. I am going to talk to my own
immigration lawyer tomorrow.

Teich

"Teich" wrote in message
news:GkyRa.82955$H17.26035@sccrnsc02...
    > > >> If you can get them to delay withdrawing it until October 8, that
would
    > > >> be great. You are already half-way through the 180 days. Since you
say
    > > >> "a couple of months" it seems that they would be willing to cooperate
    > > >> on this. For that matter, they are not required to withdraw the I-140
    > > >> at all, since it is for a potential future job (in contrast, they are
    > > >> required to cancel your H-1B petition).
    > > >
    > > > I am not sure if they will do as I ask. They said they would withdraw
    > > > the I-129 in a couple of months. I am guessing that they will
withdraw
    > > > the I-140 at the same time.
    > >
    > > I don't see any basis for that guess. The law requires them to revoke
the
    > > I-129 (and not in a couple months, but fairly soon), but it does not
    > > require them to do anything about the I-140.
    > They did hint to me that "because of their heavy workload, they will
inform
    > the BCIS about the loss of my job (as far as my H-1B is concerned) in a
    > couple of months". They seem to be comfortable waiting close to 2 months
to
    > withdraw the I-129 so that folks with H-1Bs who get laid off have a chance
    > to do an H-1B transfer within 60 days without going to the B-2 route.
    > However, I do NOT agree with their viewpoint that one shouldn't need to
    > switch to a B-2 in the mean time, but they, and also other friends of
mine,
    > said that it is routinely done and is allowed by the BCIS.
    > Hopefully I will get them to agree to withdraw the I-140 in a couple of
    > months too...we will see. I doubt that they will leave the I-140 alone
    > (i.e., not withdrawing it), because I feel that they worry about being
    > audited and black-listed (i.e., when someone is laid off, there shouldn't
be
    > a future job offer for him/her).
    > > > I know that I am so close, but no cigar. Maybe it will take the BCIS
    > > > another month, after the I-140 withdrawal, to revoke the I-140. Then
    > > > the 180-day requirement will be satisfied.
    > >
    > > No. The withdrawal is automatic. BCIS does not actually do anything
about
    > > it. Rather, the I-140 is considered withdrawn the day the letter arrives
    > > at the BCIS office.
    > >
    > > > More importantly, I have a job interview coming up in August. I just
    > > > want to make sure that I am in legal status long enough (for two to
    > > > three months) to get an H-1B for my next job.
    > >
    > > Shouldn't be a problem.
    > >
    > > > I really don't mind if I have to go through the EB-1(b) later again,
    > > > because I am not sure how BCIS decide whether two jobs are in the same
    > > > field or not (as far as portability is concerned).
    > >
    > > Here is another hint: if the timing works out, you may be able to
    > > substitute a new I-140 into the existing I-485. To do that, the new
    > > employer would have to get the ball rolling on the new Labor
Certification
    > > (if needed) and I-140 immediately. When the I-140 is filed, simply
inform
    > > BCIS to combine it with the old, already-pending I-485. That way, you
will
    > > take advantage of the fact that the I-485 has already been pending for a
    > > long time and is close to a decision.
    > Sounds like a plan, Ingo. I will work on it after finding my next job.
On
    > the other hand, if I am applying for another I-140 under EB-1(b), I may
opt
    > for consular processing because it seems that the processing dates for
    > I-485's are not moving forward at all.

Sylvia Ottemoeller

"Teich" wrote in message
news:wNmRa.80096$Ph3.8934@sccrnsc04...

    > Sylvia:
    > Thanks very much for passing along the info regarding AC21 portability
    > issues. However, the case mentioned in the letter probably won't apply to
    > me since my I-140 was filed on April 8, 2003, while my company will likely
    > to withdraw the I-140 in a couple of months.
    > I am just wondering which path you would take if you were me:
    > 1. Ask the company to withdraw the I-140 and the I-485 petitions. Then,
    > before my last day of work, file an I-539 petition to switch to a B-2 so
    > that I can remain in status for the next 2 to 3 months. If I find a new
    > job, I will either get a new H-1B, an H-1B transfer, or a TN (since the
    > I-140 is already withdrawn).
    > 2. Hoping that the company won't withdraw the I-140 until a couple of
    > months from now, I will remain in I-485 pending status until I find my
next
    > job.

I'm not sure what I would do. I'm glad you are planning to consult your own
attorney.

    > "Sylvia Ottemoeller" wrote in message
    > news:[email protected]...

    > > Have you seen this:
    > >
    > > http://www.imwong.com/pdf/0703-AC21Portability.pdf
    > > listed here with a brief summary on 7/9/03:
    > > http://www.imwong.com/News.htm

Sylvia Ottemoeller

"Teich" wrote in message
news:B1jRa.79437$N7.8440@sccrnsc03...

    > > >> Option 2. Actually, even if the company withdraws the I-140, you
would
    > > >> remain in status until BCIS gets around to denying the I-485.

    > > > Ingo:
    > > >
    > > > Do you know how long approx. it will take BCIS to deny the I-485, when
    > > > the I-140 is withdrawn?
    > >
    > > I really don't know. They could pull it right then, but more likely
after
    > > the regular processing time.
    > But the regular processing time can be as long as two years?!

Yes, it can. I think BCIS will not generally go out of its way to pull
applications out of order, even to deny them. That takes extra effort. The
I-485 will sit in its place in the queue until the examiner gets to it, and
then if the I-140 withdrawal was more than 180 days after the I-485 filing,
the examiner will probably send out an RFE to find out what is going on.

    > > > Also, may I ask why you seem to dislike going the B-2 route?
    > >
    > > With the I-485 route, you still have a shot at BCIS ignoring their
policy
    > > and approving the I-485. They are supposed to do that anyway according
to
    > > AC-21.
    > >
    > > Also, the B-2 and TN route may well be closed for you because of
    > > demonstrated immigration intent.
    > >
    > > > Because if the company withdraws the I-140/I-485, I might even manage
to
    > > > get a TN visa for my next job!

Ingo Pakleppa

On Thu, 17 Jul 2003 14:24:38 +0000, Teich wrote:

    >> >> If you can get them to delay withdrawing it until October 8, that
    >> >> would be great. You are already half-way through the 180 days. Since
    >> >> you say "a couple of months" it seems that they would be willing to
    >> >> cooperate on this. For that matter, they are not required to
    >> >> withdraw the I-140 at all, since it is for a potential future job
    >> >> (in contrast, they are required to cancel your H-1B petition).
    >> >
    >> > I am not sure if they will do as I ask. They said they would
    >> > withdraw the I-129 in a couple of months. I am guessing that they
    >> > will withdraw the I-140 at the same time.
    >> I don't see any basis for that guess. The law requires them to revoke
    >> the I-129 (and not in a couple months, but fairly soon), but it does
    >> not require them to do anything about the I-140.
    >
    > They did hint to me that "because of their heavy workload, they will
    > inform the BCIS about the loss of my job (as far as my H-1B is
    > concerned) in a couple of months". They seem to be comfortable waiting
    > close to 2 months to withdraw the I-129 so that folks with H-1Bs who get
    > laid off have a chance to do an H-1B transfer within 60 days without
    > going to the B-2 route.

Unfortunately, that wouldn't fly with BCIS. It does not matter when they
withdraw the I-129, or even if they fail to do it at all. What counts for
this 60-day period is the last day they actually showed up for work. BCIS
will ask the affected person for recent pay stubs.

    > However, I do NOT agree with their viewpoint that one shouldn't need to
    > switch to a B-2 in the mean time, but they, and also other friends of
    > mine, said that it is routinely done and is allowed by the BCIS.

Until 9/11, INS routinely forgave such situations. Unfortunately, since
then they implemented a zero-tolerance policy.

    > Hopefully I will get them to agree to withdraw the I-140 in a couple of
    > months too...we will see. I doubt that they will leave the I-140 alone
    > (i.e., not withdrawing it), because I feel that they worry about being
    > audited and black-listed (i.e., when someone is laid off, there
    > shouldn't be a future job offer for him/her).

The I-140 won't cause problems during an audit, ever. That is because the
I-140 is for FUTURE employment. Maybe they do want to rehire you, after
all? There is no way for BCIS to prove that they wouldn't, so BCIS is just
plain not interested.

Only current and past employment would cause such problems. That means,
the only situation where they would have a problem is if they had somebody
on the payroll for whom they didn't have a current I-129. Technically,
what would be audited are their I-9s, and paperwork directly supporting
the I-9s (in the case of H-1Bs, that would be the H-1B approval notice).
The I-140 does not support any I-9, so there won't be a problem.

As an aside, even the requirement that they withdraw the I-129 actually
isn't usually enforced.

Of course, it is one thing what some anonymous guy on usenet named Ingo is
telling you. Convincing them is quite another ;-)

    >> Here is another hint: if the timing works out, you may be able to
    >> substitute a new I-140 into the existing I-485. To do that, the new
    >> employer would have to get the ball rolling on the new Labor
    >> Certification (if needed) and I-140 immediately. When the I-140 is
    >> filed, simply inform BCIS to combine it with the old, already-pending
    >> I-485. That way, you will take advantage of the fact that the I-485 has
    >> already been pending for a long time and is close to a decision.
    >
    > Sounds like a plan, Ingo. I will work on it after finding my next job.
    > On the other hand, if I am applying for another I-140 under EB-1(b), I
    > may opt for consular processing because it seems that the processing
    > dates for I-485's are not moving forward at all.

You can even combine these two strategies: file the I-140 and request
consular processing. If it looks like the I-485 is getting close to
approval when the I-140 is approved, simply submit the I-140 to BCIS.

--
Remember, I am strictly a layperson without any legal training. I encourage
everybody to seek competent legal counsel rather than relying on usenet
newsgroups.

Please support H.R. 539 and H.R. 832. More information at
http://www.kkeane.com/lobbyspousal-faq.shtml

Please visit my new FAQ at http://www.kkeane.com (always under construction)

My email address in usenet posts is now invalid for spam protection. See
my Web site for information on how to contact me.

Please feel free to enjoy some of my photographs at my new Web site
http://www.ingopakleppa.com ! Comments are welcome.

Teich

    > > Thanks very much for passing along the info regarding AC21 portability
    > > issues. However, the case mentioned in the letter probably won't apply
to
    > > me since my I-140 was filed on April 8, 2003, while my company will
likely
    > > to withdraw the I-140 in a couple of months.
    > >
    > > I am just wondering which path you would take if you were me:
    > >
    > > 1. Ask the company to withdraw the I-140 and the I-485 petitions.
Then,
    > > before my last day of work, file an I-539 petition to switch to a B-2 so
    > > that I can remain in status for the next 2 to 3 months. If I find a new
    > > job, I will either get a new H-1B, an H-1B transfer, or a TN (since the
    > > I-140 is already withdrawn).
    > >
    > > 2. Hoping that the company won't withdraw the I-140 until a couple of
    > > months from now, I will remain in I-485 pending status until I find my
    > next
    > > job.
    > I'm not sure what I would do. I'm glad you are planning to consult your
own
    > attorney.

In the very least, do you believe, in my case, that a pending I-485 would
allow me to be in valid status at all? My company's immigration lawyer
didn't seem to think so.

Teich

Teich

Ingo:

Please the my posting after I had talked to the company lawyer. I am
reposting here in case you miss that particular posting.

"Basically she strongly believes, in my case, that a
pending I-485 without a valid H-1B is not a valid status AT ALL. I believe
that her interpretation of the law tends to be conservative. She is
recommending me to i) withdraw the I-140/I-485, ii) file an I-539 to switch
to B-2 (asking for 3 month's time), which takes about 3 months to
adjudicate, and iii) transfer to a new H-1B within 2.5 months if I find a
new job.

Using her conservative approach, she believes that I will be able to
transfer my H-1B with 2.5 months before the BCIS gets the chance to deny my
I-539.

Since my last day is next Thursday, I have to act fast. If I am filing the
I-539, I want to mail it off on Tuesday. I am going to talk to my own
immigration lawyer tomorrow."

Teich

    > > Hopefully I will get them to agree to withdraw the I-140 in a couple of
    > > months too...we will see. I doubt that they will leave the I-140 alone
    > > (i.e., not withdrawing it), because I feel that they worry about being
    > > audited and black-listed (i.e., when someone is laid off, there
    > > shouldn't be a future job offer for him/her).
    > The I-140 won't cause problems during an audit, ever. That is because the
    > I-140 is for FUTURE employment. Maybe they do want to rehire you, after
    > all? There is no way for BCIS to prove that they wouldn't, so BCIS is just
    > plain not interested.
    > Only current and past employment would cause such problems. That means,
    > the only situation where they would have a problem is if they had somebody
    > on the payroll for whom they didn't have a current I-129. Technically,
    > what would be audited are their I-9s, and paperwork directly supporting
    > the I-9s (in the case of H-1Bs, that would be the H-1B approval notice).
    > The I-140 does not support any I-9, so there won't be a problem.
    > As an aside, even the requirement that they withdraw the I-129 actually
    > isn't usually enforced.
    > Of course, it is one thing what some anonymous guy on usenet named Ingo is
    > telling you. Convincing them is quite another ;-)
    > >> Here is another hint: if the timing works out, you may be able to
    > >> substitute a new I-140 into the existing I-485. To do that, the new
    > >> employer would have to get the ball rolling on the new Labor
    > >> Certification (if needed) and I-140 immediately. When the I-140 is
    > >> filed, simply inform BCIS to combine it with the old, already-pending
    > >> I-485. That way, you will take advantage of the fact that the I-485 has
    > >> already been pending for a long time and is close to a decision.
    > >
    > > Sounds like a plan, Ingo. I will work on it after finding my next job.
    > > On the other hand, if I am applying for another I-140 under EB-1(b), I
    > > may opt for consular processing because it seems that the processing
    > > dates for I-485's are not moving forward at all.
    > You can even combine these two strategies: file the I-140 and request
    > consular processing. If it looks like the I-485 is getting close to
    > approval when the I-140 is approved, simply submit the I-140 to BCIS.

Ingo Pakleppa

That interpretation is clearly nonsense. A pending I-485 without an H-1B
is a very common and perfectly legal situation. In fact, I was in this
situation myself. The most common scenario is for the H-1B to reach the
six-year limit and the I-485 to not yet be approved. Today, this is not
quite as frequent because most - but not all - such people can get a
seventh year on H-1B.

Incidentally, there are many people who file I-485s without ever having
had an H-1B. And almost all other types of non-immigrant status end
automatically when the I-485 is filed; the very fact that the H-1B even
continues at all is an exception to the rule.

The only thing that an I-485 without an H-1B means is that you can't work.
And that can be fixed with an EAD. But you can still sit at home, travel
through the country, and even attend college if you have a pending I-485
but neither an H-1B nor an EAD.

On Thu, 17 Jul 2003 23:22:35 +0000, Teich wrote:

    > Ingo:
    >
    > I have some breaking news! I just spent a half-hour with the company's
    > immigration attorney. Basically she strongly believes, in my case, that
    > a pending I-485 without a valid H-1B is not a valid status AT ALL. I
    > believe that her interpretation of the law tends to be conservative. She
    > is recommending me to i) withdraw the I-140/I-485, ii) file an I-539 to
    > switch to B-2 (asking for 3 month's time), which takes about 3 months to
    > adjudicate, and iii) transfer to a new H-1B within 2.5 months if I find
    > a new job.
    >
    > Using her conservative approach, she believes that I will be able to
    > transfer my H-1B with 2.5 months before the BCIS gets the chance to deny
    > my I-539.
    >
    > Since my last day is next Thursday, I have to act fast. If I am filing
    > the I-539, I want to mail it off on Tuesday. I am going to talk to my
    > own immigration lawyer tomorrow.
    >
    > Teich
    >
    > "Teich" wrote in message
    > news:GkyRa.82955$H17.26035@sccrnsc02...
    >> > >> If you can get them to delay withdrawing it until October 8, that
    > would
    >> > >> be great. You are already half-way through the 180 days. Since you
    > say
    >> > >> "a couple of months" it seems that they would be willing to
    >> > >> cooperate on this. For that matter, they are not required to
    >> > >> withdraw the I-140 at all, since it is for a potential future job
    >> > >> (in contrast, they are required to cancel your H-1B petition).
    >> > >
    >> > > I am not sure if they will do as I ask. They said they would
    >> > > withdraw the I-129 in a couple of months. I am guessing that they
    >> > > will
    > withdraw
    >> > > the I-140 at the same time.
    >> >
    >> > I don't see any basis for that guess. The law requires them to revoke
    > the
    >> > I-129 (and not in a couple months, but fairly soon), but it does not
    >> > require them to do anything about the I-140.
    >> They did hint to me that "because of their heavy workload, they will
    > inform
    >> the BCIS about the loss of my job (as far as my H-1B is concerned) in a
    >> couple of months". They seem to be comfortable waiting close to 2
    >> months
    > to
    >> withdraw the I-129 so that folks with H-1Bs who get laid off have a
    >> chance to do an H-1B transfer within 60 days without going to the B-2
    >> route. However, I do NOT agree with their viewpoint that one shouldn't
    >> need to switch to a B-2 in the mean time, but they, and also other
    >> friends of
    > mine,
    >> said that it is routinely done and is allowed by the BCIS.
    >> Hopefully I will get them to agree to withdraw the I-140 in a couple of
    >> months too...we will see. I doubt that they will leave the I-140 alone
    >> (i.e., not withdrawing it), because I feel that they worry about being
    >> audited and black-listed (i.e., when someone is laid off, there
    >> shouldn't
    > be
    >> a future job offer for him/her).
    >> > > I know that I am so close, but no cigar. Maybe it will take the
    >> > > BCIS another month, after the I-140 withdrawal, to revoke the
    >> > > I-140. Then the 180-day requirement will be satisfied.
    >> >
    >> > No. The withdrawal is automatic. BCIS does not actually do anything
    > about
    >> > it. Rather, the I-140 is considered withdrawn the day the letter
    >> > arrives at the BCIS office.
    >> >
    >> > > More importantly, I have a job interview coming up in August. I
    >> > > just want to make sure that I am in legal status long enough (for
    >> > > two to three months) to get an H-1B for my next job.
    >> >
    >> > Shouldn't be a problem.
    >> >
    >> > > I really don't mind if I have to go through the EB-1(b) later
    >> > > again, because I am not sure how BCIS decide whether two jobs are
    >> > > in the same field or not (as far as portability is concerned).
    >> >
    >> > Here is another hint: if the timing works out, you may be able to
    >> > substitute a new I-140 into the existing I-485. To do that, the new
    >> > employer would have to get the ball rolling on the new Labor
    > Certification
    >> > (if needed) and I-140 immediately. When the I-140 is filed, simply
    > inform
    >> > BCIS to combine it with the old, already-pending I-485. That way, you
    > will
    >> > take advantage of the fact that the I-485 has already been pending
    >> > for a long time and is close to a decision.
    >> Sounds like a plan, Ingo. I will work on it after finding my next job.
    > On
    >> the other hand, if I am applying for another I-140 under EB-1(b), I may
    > opt
    >> for consular processing because it seems that the processing dates for
    >> I-485's are not moving forward at all.

--
Remember, I am strictly a layperson without any legal training. I encourage
everybody to seek competent legal counsel rather than relying on usenet
newsgroups.

Please support H.R. 539 and H.R. 832. More information at
http://www.kkeane.com/lobbyspousal-faq.shtml

Please visit my new FAQ at http://www.kkeane.com (always under construction)

My email address in usenet posts is now invalid for spam protection. See
my Web site for information on how to contact me.

Please feel free to enjoy some of my photographs at my new Web site
http://www.ingopakleppa.com ! Comments are welcome.

Teich

Ingo:

You made some excellent points. I actually pasted some of your comments in
my email to the same company immigration lawyer (I took out the "nonsense"
part, though).

Maybe her objection on me relying on a pending I-485 is that I might have
trouble getting my next H-1B. I noticed that on the I-129 application, they
would ask for the applicant's current *non-immigration status*, which I
don't really have one if only an I-485 is pending.

I have to make a final decision soon (going to B-2 versus a pending I-485)
since my termination day is next Thursday. Ugh!

Teich

"Ingo Pakleppa" wrote in message
news[email protected]...
    > That interpretation is clearly nonsense. A pending I-485 without an H-1B
    > is a very common and perfectly legal situation. In fact, I was in this
    > situation myself. The most common scenario is for the H-1B to reach the
    > six-year limit and the I-485 to not yet be approved. Today, this is not
    > quite as frequent because most - but not all - such people can get a
    > seventh year on H-1B.
    > Incidentally, there are many people who file I-485s without ever having
    > had an H-1B. And almost all other types of non-immigrant status end
    > automatically when the I-485 is filed; the very fact that the H-1B even
    > continues at all is an exception to the rule.
    > The only thing that an I-485 without an H-1B means is that you can't work.
    > And that can be fixed with an EAD. But you can still sit at home, travel
    > through the country, and even attend college if you have a pending I-485
    > but neither an H-1B nor an EAD.
    > On Thu, 17 Jul 2003 23:22:35 +0000, Teich wrote:
    > > Ingo:
    > >
    > > I have some breaking news! I just spent a half-hour with the company's
    > > immigration attorney. Basically she strongly believes, in my case, that
    > > a pending I-485 without a valid H-1B is not a valid status AT ALL. I
    > > believe that her interpretation of the law tends to be conservative. She
    > > is recommending me to i) withdraw the I-140/I-485, ii) file an I-539 to
    > > switch to B-2 (asking for 3 month's time), which takes about 3 months to
    > > adjudicate, and iii) transfer to a new H-1B within 2.5 months if I find
    > > a new job.
    > >
    > > Using her conservative approach, she believes that I will be able to
    > > transfer my H-1B with 2.5 months before the BCIS gets the chance to deny
    > > my I-539.
    > >
    > > Since my last day is next Thursday, I have to act fast. If I am filing
    > > the I-539, I want to mail it off on Tuesday. I am going to talk to my
    > > own immigration lawyer tomorrow.
    > >
    > > Teich
    > >
    > > "Teich" wrote in message
    > > news:GkyRa.82955$H17.26035@sccrnsc02...
    > >> > >> If you can get them to delay withdrawing it until October 8, that
    > > would
    > >> > >> be great. You are already half-way through the 180 days. Since you
    > > say
    > >> > >> "a couple of months" it seems that they would be willing to
    > >> > >> cooperate on this. For that matter, they are not required to
    > >> > >> withdraw the I-140 at all, since it is for a potential future job
    > >> > >> (in contrast, they are required to cancel your H-1B petition).
    > >> > >
    > >> > > I am not sure if they will do as I ask. They said they would
    > >> > > withdraw the I-129 in a couple of months. I am guessing that they
    > >> > > will
    > > withdraw
    > >> > > the I-140 at the same time.
    > >> >
    > >> > I don't see any basis for that guess. The law requires them to revoke
    > > the
    > >> > I-129 (and not in a couple months, but fairly soon), but it does not
    > >> > require them to do anything about the I-140.
    > >>
    > >> They did hint to me that "because of their heavy workload, they will
    > > inform
    > >> the BCIS about the loss of my job (as far as my H-1B is concerned) in a
    > >> couple of months". They seem to be comfortable waiting close to 2
    > >> months
    > > to
    > >> withdraw the I-129 so that folks with H-1Bs who get laid off have a
    > >> chance to do an H-1B transfer within 60 days without going to the B-2
    > >> route. However, I do NOT agree with their viewpoint that one shouldn't
    > >> need to switch to a B-2 in the mean time, but they, and also other
    > >> friends of
    > > mine,
    > >> said that it is routinely done and is allowed by the BCIS.
    > >>
    > >> Hopefully I will get them to agree to withdraw the I-140 in a couple of
    > >> months too...we will see. I doubt that they will leave the I-140 alone
    > >> (i.e., not withdrawing it), because I feel that they worry about being
    > >> audited and black-listed (i.e., when someone is laid off, there
    > >> shouldn't
    > > be
    > >> a future job offer for him/her).
    > >>
    > >> > > I know that I am so close, but no cigar. Maybe it will take the
    > >> > > BCIS another month, after the I-140 withdrawal, to revoke the
    > >> > > I-140. Then the 180-day requirement will be satisfied.
    > >> >
    > >> > No. The withdrawal is automatic. BCIS does not actually do anything
    > > about
    > >> > it. Rather, the I-140 is considered withdrawn the day the letter
    > >> > arrives at the BCIS office.
    > >> >
    > >> > > More importantly, I have a job interview coming up in August. I
    > >> > > just want to make sure that I am in legal status long enough (for
    > >> > > two to three months) to get an H-1B for my next job.
    > >> >
    > >> > Shouldn't be a problem.
    > >> >
    > >> > > I really don't mind if I have to go through the EB-1(b) later
    > >> > > again, because I am not sure how BCIS decide whether two jobs are
    > >> > > in the same field or not (as far as portability is concerned).
    > >> >
    > >> > Here is another hint: if the timing works out, you may be able to
    > >> > substitute a new I-140 into the existing I-485. To do that, the new
    > >> > employer would have to get the ball rolling on the new Labor
    > > Certification
    > >> > (if needed) and I-140 immediately. When the I-140 is filed, simply
    > > inform
    > >> > BCIS to combine it with the old, already-pending I-485. That way, you
    > > will
    > >> > take advantage of the fact that the I-485 has already been pending
    > >> > for a long time and is close to a decision.
    > >>
    > >> Sounds like a plan, Ingo. I will work on it after finding my next job.
    > > On
    > >> the other hand, if I am applying for another I-140 under EB-1(b), I may
    > > opt
    > >> for consular processing because it seems that the processing dates for
    > >> I-485's are not moving forward at all.
    > >>
    > >>
    > --
    > Remember, I am strictly a layperson without any legal training. I
encourage
    > everybody to seek competent legal counsel rather than relying on usenet
    > newsgroups.
    > Please support H.R. 539 and H.R. 832. More information at
    > http://www.kkeane.com/lobbyspousal-faq.shtml
    > Please visit my new FAQ at http://www.kkeane.com (always under
construction)
    > My email address in usenet posts is now invalid for spam protection. See
    > my Web site for information on how to contact me.
    > Please feel free to enjoy some of my photographs at my new Web site
    > http://www.ingopakleppa.com ! Comments are welcome.

Ingo Pakleppa

You would indeed have trouble getting your next H-1B, but there is nothing
that says you couldn't work with your EAD for the new employer. It's just
less convenient because then you have to renew it every year, and you have
to use Advance Parole to travel. But your new employer would love you for
working with the EAD because they wouldn't have to spend thousands of $$$
sponsoring your H-1B.

Also, you CAN get back your H-1B if you have an unexpired H-1B visa - just
leave the US and return with your H-1B approval notice and the I-485
receipt notice.

For current non-immigration status, you would write "pending I-485".

On Fri, 18 Jul 2003 14:55:57 +0000, Teich wrote:

    > Ingo:
    >
    > You made some excellent points. I actually pasted some of your comments
    > in my email to the same company immigration lawyer (I took out the
    > "nonsense" part, though).
    >
    > Maybe her objection on me relying on a pending I-485 is that I might
    > have trouble getting my next H-1B. I noticed that on the I-129
    > application, they would ask for the applicant's current *non-immigration
    > status*, which I don't really have one if only an I-485 is pending.
    >
    > I have to make a final decision soon (going to B-2 versus a pending
    > I-485) since my termination day is next Thursday. Ugh!
    >
    > Teich
    >
    > "Ingo Pakleppa" wrote in message
    > news[email protected]...
    >> That interpretation is clearly nonsense. A pending I-485 without an
    >> H-1B is a very common and perfectly legal situation. In fact, I was in
    >> this situation myself. The most common scenario is for the H-1B to
    >> reach the six-year limit and the I-485 to not yet be approved. Today,
    >> this is not quite as frequent because most - but not all - such people
    >> can get a seventh year on H-1B.
    >> Incidentally, there are many people who file I-485s without ever having
    >> had an H-1B. And almost all other types of non-immigrant status end
    >> automatically when the I-485 is filed; the very fact that the H-1B even
    >> continues at all is an exception to the rule.
    >> The only thing that an I-485 without an H-1B means is that you can't
    >> work. And that can be fixed with an EAD. But you can still sit at home,
    >> travel through the country, and even attend college if you have a
    >> pending I-485 but neither an H-1B nor an EAD.
    >> On Thu, 17 Jul 2003 23:22:35 +0000, Teich wrote:
    >> > Ingo:
    >> >
    >> > I have some breaking news! I just spent a half-hour with the
    >> > company's immigration attorney. Basically she strongly believes, in
    >> > my case, that a pending I-485 without a valid H-1B is not a valid
    >> > status AT ALL. I believe that her interpretation of the law tends to
    >> > be conservative. She is recommending me to i) withdraw the
    >> > I-140/I-485, ii) file an I-539 to switch to B-2 (asking for 3 month's
    >> > time), which takes about 3 months to adjudicate, and iii) transfer to
    >> > a new H-1B within 2.5 months if I find a new job.
    >> >
    >> > Using her conservative approach, she believes that I will be able to
    >> > transfer my H-1B with 2.5 months before the BCIS gets the chance to
    >> > deny my I-539.
    >> >
    >> > Since my last day is next Thursday, I have to act fast. If I am
    >> > filing the I-539, I want to mail it off on Tuesday. I am going to
    >> > talk to my own immigration lawyer tomorrow.
    >> >
    >> > Teich
    >> >
    >> > "Teich" wrote in message
    >> > news:GkyRa.82955$H17.26035@sccrnsc02...
    >> >> > >> If you can get them to delay withdrawing it until October 8,
    >> >> > >> that
    >> > would
    >> >> > >> be great. You are already half-way through the 180 days. Since
    >> >> > >> you
    >> > say
    >> >> > >> "a couple of months" it seems that they would be willing to
    >> >> > >> cooperate on this. For that matter, they are not required to
    >> >> > >> withdraw the I-140 at all, since it is for a potential future
    >> >> > >> job (in contrast, they are required to cancel your H-1B
    >> >> > >> petition).
    >> >> > >
    >> >> > > I am not sure if they will do as I ask. They said they would
    >> >> > > withdraw the I-129 in a couple of months. I am guessing that
    >> >> > > they will
    >> > withdraw
    >> >> > > the I-140 at the same time.
    >> >> >
    >> >> > I don't see any basis for that guess. The law requires them to
    >> >> > revoke
    >> > the
    >> >> > I-129 (and not in a couple months, but fairly soon), but it does
    >> >> > not require them to do anything about the I-140.
    >> >>
    >> >> They did hint to me that "because of their heavy workload, they will
    >> > inform
    >> >> the BCIS about the loss of my job (as far as my H-1B is concerned)
    >> >> in a couple of months". They seem to be comfortable waiting close
    >> >> to 2 months
    >> > to
    >> >> withdraw the I-129 so that folks with H-1Bs who get laid off have a
    >> >> chance to do an H-1B transfer within 60 days without going to the
    >> >> B-2 route. However, I do NOT agree with their viewpoint that one
    >> >> shouldn't need to switch to a B-2 in the mean time, but they, and
    >> >> also other friends of
    >> > mine,
    >> >> said that it is routinely done and is allowed by the BCIS.
    >> >>
    >> >> Hopefully I will get them to agree to withdraw the I-140 in a couple
    >> >> of months too...we will see. I doubt that they will leave the I-140
    >> >> alone (i.e., not withdrawing it), because I feel that they worry
    >> >> about being audited and black-listed (i.e., when someone is laid
    >> >> off, there shouldn't
    >> > be
    >> >> a future job offer for him/her).
    >> >>
    >> >> > > I know that I am so close, but no cigar. Maybe it will take the
    >> >> > > BCIS another month, after the I-140 withdrawal, to revoke the
    >> >> > > I-140. Then the 180-day requirement will be satisfied.
    >> >> >
    >> >> > No. The withdrawal is automatic. BCIS does not actually do
    >> >> > anything
    >> > about
    >> >> > it. Rather, the I-140 is considered withdrawn the day the letter
    >> >> > arrives at the BCIS office.
    >> >> >
    >> >> > > More importantly, I have a job interview coming up in August. I
    >> >> > > just want to make sure that I am in legal status long enough
    >> >> > > (for two to three months) to get an H-1B for my next job.
    >> >> >
    >> >> > Shouldn't be a problem.
    >> >> >
    >> >> > > I really don't mind if I have to go through the EB-1(b) later
    >> >> > > again, because I am not sure how BCIS decide whether two jobs
    >> >> > > are in the same field or not (as far as portability is
    >> >> > > concerned).
    >> >> >
    >> >> > Here is another hint: if the timing works out, you may be able to
    >> >> > substitute a new I-140 into the existing I-485. To do that, the
    >> >> > new employer would have to get the ball rolling on the new Labor
    >> > Certification
    >> >> > (if needed) and I-140 immediately. When the I-140 is filed, simply
    >> > inform
    >> >> > BCIS to combine it with the old, already-pending I-485. That way,
    >> >> > you
    >> > will
    >> >> > take advantage of the fact that the I-485 has already been pending
    >> >> > for a long time and is close to a decision.
    >> >>
    >> >> Sounds like a plan, Ingo. I will work on it after finding my next
    >> >> job.
    >> > On
    >> >> the other hand, if I am applying for another I-140 under EB-1(b), I
    >> >> may
    >> > opt
    >> >> for consular processing because it seems that the processing dates
    >> >> for I-485's are not moving forward at all.
    >> >>
    >> >>
    >> >>
    >> --
    >> Remember, I am strictly a layperson without any legal training. I
    > encourage
    >> everybody to seek competent legal counsel rather than relying on usenet
    >> newsgroups.
    >> Please support H.R. 539 and H.R. 832. More information at
    >> http://www.kkeane.com/lobbyspousal-faq.shtml
    >> Please visit my new FAQ at http://www.kkeane.com (always under
    > construction)
    >> My email address in usenet posts is now invalid for spam protection.
    >> See my Web site for information on how to contact me.
    >> Please feel free to enjoy some of my photographs at my new Web site
    >> http://www.ingopakleppa.com ! Comments are welcome.

--
Remember, I am strictly a layperson without any legal training. I encourage
everybody to seek competent legal counsel rather than relying on usenet
newsgroups.

Please support H.R. 539 and H.R. 832. More information at
http://www.kkeane.com/lobbyspousal-faq.shtml

Please visit my new FAQ at http://www.kkeane.com (always under construction)

My email address in usenet posts is now invalid for spam protection. See
my Web site for information on how to contact me.

Please feel free to enjoy some of my photographs at my new Web site
http://www.ingopakleppa.com ! Comments are welcome.