AC21 AOS Portability

Working abroad while AOS pending

My self and my wife are on EAD and advance parole. My wife and I are from India. I have to work in Switzerland on my company business for some time 6 months to a year – would that affect my EAD status in the USA. I would be working for the Swiss branch of my company.The assignment is short term 6-12 months. This is however not the company with which I started my green card. I changed jobs when I got my EAD. But I have several questions: 1. Can I even work abroad while on EAD status - short term, i am only talking 6-12 months. if this term is 11 months is that fine? Or do i have to work in the USA only while on EAD? 2. Do I need to maintain substantial presence in the USA while on EAD. And if so what is that term of stay. 3. Updated FAQ: My case is slightly different than the above one. Currently I am on Derivative EAD, which I got through my spouse's company. (I 485 pending and more than 180 days) I was on H1B and I got laid off in March 2009. I am still finding difficult to find a job in the US. I got an offer from a company in Canada. I know that I can work there once I get canadian work permit. My wife (main applicant and EAD holder) will be working for the same company in the US. My question is how often I can come to US with my Advance Parole? will there be any problem if I visit US often? Please advise.

1. An EAD is good to work on US soil only. If you wish to work in a third country, you have to look to their laws for work permissions. You should file an AC21 portability and make sure during your entire stay abroad you have at least your Advance Parole; preferable both your AP and H-1 visa.

2. As long as the permanent job continues to exist, there is no other requirement of presence.

3. I see no problem with visiting USA as often as you like.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Working for two companies on EAD

1. Wanted to check if on an EAD one could work for 2 companies. One sponsoring the GC (Maybe part time) and other full time. 2. Updated FAQ: I have a question in similar line. Currently I am on derivative EAD. My spouse is the main applicant and I got my EAD thru her company. She still works for the same company. We (me and my friend) have started a company in India some time back. Now, I want to start our new office in the US. Will there be any legal implications? What kind of company I can start here.. LLC or Inc? Please advise.

1. Theoretically, you can work for as many companies as you like on EAD. My concern would be the implication that you no longer have a full time job with the sponsoring company, which is a requirement for the green card.

2. Since you are on a derivative EAD, you have even more freedom than the primary applicant. Other than an S corporation (I think that requires green card under tax laws), you can form any kind of corporation (LLC, etc.), but do check on the State law.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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AC21 - accepting a green card

1) After getting the GC through a sponsoring employer, is there any procedure to indicate that the future job is accepted by the employee. I mean switching from H1B to GC status is just based on letting the employer know about the status or is there any paperwork needed to be sent to USCIS? 2) Also, based on getting a green card, is there a stringent requirement of payroll checks? This is based on the fact that H1B employees have to maintain the payroll constantly (based on my knowledge). I am asking this in case I want to take a vacation for some time in case I get my GC? 3) After joining the sponsoring employer, if on GC, more opportunities come by, is it allright to consider those opportunities? What is the timeframe for USCIS to consider that the employee did have the right intent to join the sponsoring employer?

A1) There is no formal procedure other than joining, preparing a Form I-9, being on the payroll and actually working.

A2) You can behave like you would in any other permanent job - take vacations, etc.

A3) That question has been answered on my blog. See http://forums.immigration.com/blog.php?b=36

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Leave of absence - I-485 pending

a). I am an associate professor at XXX State University. Beginning August, 2009 (in two weeks time), I am planning on going for a one-year unpaid professional leave of absence. During the leave I will be in India. However I would technically still be employed by my University. Meanwhile, I have an approved I-140 (EB-2) - I-485 pending. b). What happens if I get my green card while I am on leave (I am going to India)? Can I still receive it legally? If I can legally accept the green card, can I change my address on the USCIS web site and give my relative's address? We currently live in California and our case is is handled by Nebraska Center. Given this scenario, should we give the address of our relatives in California, or is it O.K. to give the address of our relative who lives in New Jersey? c). At the time I filled the I-485 for myself and my wife, my wife was pregnant and could not get one of the immunizations (I think it was MMR). Now I am afraid that when we are out of the country we might get a medical RFE for my wife. Is it possible for us to get the immunizations done by a USCIS authorized doctor, and send the report to the USCIS in anticipation of the RFE? If yes, then which form should be fill/take to the doctor?

a). The first issue would be whether or not you still have a "permanent job" that would qualify you for a green card. In situations of long vacation, questions could be raised whether or not the green card job is indeed permanent; if so, who will do it in your absence; what is the reason for your leave; are you terminating your relationship with your employer, etc. If you have good answers to all these questions, you are fine.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Marriage to US Citizen with EB AOS is pending

I am currently on H1B extension (7th year ; with pending I-485 under NIW, and approved Advanced Parole & EAD) dating an American citizen. We want to get married in India. If I were to leave my current job in October 2009, and go to India (for making marriage arrangements), is it advisable to: 1. First get engaged here in the US and file for fiancé Visa while I am in US (and then travel to India) in order to re-enter US on a legal status. 2. Also do we have to get married in US again in order to provide proper legal marriage documentation and to file family based I-485 as spouse.

NIW applicants get their green card based upon an expectation of employment - not employment (unless you are a physician). So, if you have a job offer in your area of expertise, your travel on AP is fairly safe.

A legal marriage in India is fully recognized in USA.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Nufield Memo-Are you deportable even if in valid AOS/I-485 pending?

I have a question on the new very scary and confusing interoffice memo (May 6, 2009) that the acting associate director of USCIS issued regarding unlawful presence. I am currently on EAD/AP since the expiration of my 6 years of H1-b visa on september 3, 2008 with my I-140 approved and my I-485 (PD-october 2, 2004, EB2) pending. According to the example 2 (page 10) of this memo-, anybody with an expired non-immigrant visa is subject to deportation even though his I-485 was filed properly when that person was in proper non-immigrant status and the petition is still pending. My understanding was that once an AOS is filed, I am authorized to stay here and work on EAD and go in and out of USA on AP until that petition is denied. When did this law change?

That example does not make any sense. It appears to be more a clarification of a concept - NOT practice. Do NOT worry. You are fine. If someone has not already done so, I will write USCIS next week after reviewing the entire 51 page memo carefully. Do NOT lose sleep over this.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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What does AOS approval mean?

I filed I-130 for my mother. She has received approval letter for adjustment of status saying that your application has been approved . What does this mean . Does she will have interview or she will get green card in mail? She needs to go to india its emergency in india.

Approval of AOS (Form I-485) means she is now a green card holder as of the date of the approval. The only thing she needs is the proof of that fact. You can take the approval notice, make an infopass appointment and ask that her passport be stamped with evidence that her green card has been approved. That stamp is as good as a green card. She can travel using that.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Following to join

This is regarding my sister who is going through lot of stress due to visa issues. She has been on H4 for past 9 years. Her H1 was approved in 2007 with an employer who wanted to hire when she was doing her MBA from a reputed University here in US. They were even willing to hire her once she is done. 3 months back her husband lost his job and had to go on EAD since (My sister could not do it because she was traveling out of US in 2007 when the window opened). She has decided to go on H1 status. She has to get it stamped outside US as she had lost her H4 status. It has been now more than a month and she is stuck out of US (in UAE). Her employer is a small firm and due to THE bad economy she is very nervous about the future even if she gets H1 B. Here are our questions/ concerns. Please do answer these: 1. If she gets H1 B could her husband still file for Follow to Join. There is no guarantee in this environment it would give her peace of mind if he could. 2. God forbid - If she doesnot get H1B and her husband files for Follow to Join - would she have to stay out side US to do consulate processing?? How much time it takes? 3. Any advise/ suggestions are welcome.

I am assuming the situation is that the husband's AOS is pending and he is using AC21 portability. That said, she is entitled to follow to join because she was (is) married to him before his green card got approved. There is NO requirement that a spouse must on a derivative visa (like H-4) in order to follow to join. She can follow to join even if she is outside USA, OR on F-1, H-1, L-1 or any independent visa. She will have to stay outside USA if her H-1 is denied, unless he revives his H-1 and brings her back on H-4.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Employment-based out of status protection for AOS - Section 245(K)

My previous employer didn't pay me for 7 continuous months in 2006, Current employer is going to file I-140 and I-485 based on my EB2 PERM. I have all W2 and Pay stubs except that period. will that going to affect my GC application ? Please let me know what are the possible consequences of that. I didn't know about that 180 days rule.

Pursuant to section 245k of INA, an employment-based applicant and their family can file for an AOS (I-485) if they have been out of status or have worked without authorization for less than 180 days. The protection period is counted since the date of your most recent entry into USA. So if before filing I-485, you leave USA and reenter, you should have no issues. There are other ways to fix this also, but this is the most direct.
See attached USCIS Neufield Memo of 14 July 2008.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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I-485: pre-adjudication and employment verification letter

1. I see few cases where CIS has sent an RFE to ask for Employment Verification Letter (EVL). When does this typically happen? 2. For cases where in the EVL was already sent along with the I-485 application, what are the reasons usually for CIS asking EVL again? 3. I had taken an Infopass few months ago, and they had said my I-485 application is pre-adjudicated. What does this mean?

1. EVL can be asked for at any stage of AOS/I-485 process. It is REQUIRED when you submit the 485, but thereafter it is discretionary.

2. The main reasons are that USCIS has to make sure you still have a job and the job is "same or similar" to what was described in the labor cert (or I-140 for EB1).

3. This means your application has been reviewed and adjudicated to be approvable. So, USCIS is just waiting for the visa numbers to be current.

 

 

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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