Page 40 - The Indian EYE 060923

IMMIGRATION JUNE 09, 2023 | The Indian Eye 40

Termination in the Twilight Zone

When the I-485 Application Has Been

Pending for Less Than 180 Days

CYRUS D. MEHTA & For starters, laid off ers can make a case against § 245.25(a)(2)(ii)(B) even other hand, under INA §
workers can remain in the the employer’s withdrawal allows a beneficiary to port 204(j), they cannot submit
JESSICA PASZKO*
US while their adjustment of the I-140. Under 8 CFR § to a new employer based on a Supplement J if 180 days
applications are pending. 205.1(a)(3)(iii)(C), a petition an unadjudicated I-140, filed have not elapsed since the
ust a couple of months They are authorized to re- that is withdrawn 180 days or concurrently with an I-485 filing of their adjustment ap-
ago we considered the
Joptions available to main in the US so long as more after its approval, or application, so long as it is plication. If the adjustment
their I-485 application has 180 days or more after the
approvable at the time of fil-
application is subsequently
terminated H-1B workers not been denied. They associated adjustment of ing. The ability to port under denied, they can submit an
who want to become entre- should also request that the status application has been § 204(j) when the I-485 appli- I-290B Motion to Reopen or
preneurs. Since then, layoffs employer not withdraw the filed, remains approved un- cation has been pending for Reconsider. There is at least
have not abated and we’ve prior approved I-140. Unlike less its approval is revoked 180 days or more, however, an arguable basis that the
continued thinking about the 8 CFR § 214.2(h)(11) which on other grounds. is the best case scenario. If motion might work
options available to laid off obligates employers to noti- Thereafter, the laid off the laid off worker’s adjust- The laid off worker fac-
nonimmigrant workers. This fy the USCIS when an H-1B workers should seek new ment application has not es a similar problem if they
time, we consider the options worker’s employment has employment. Although they been pending for 180 days or are scheduled for an adjust-
available to H-1B workers ended before the end of their may be able to rely on em- more, then he or she cannot ment interview that will fall
whose employers have filed authorized period of stay – as ployment authorization that port to a same or similar oc- on a date that is before the
I-485 adjustment of status that could trigger back wage will be issued based on the cupation under § 204(j). 180th day of their I-485 ap-
applications on their behalf liability – employers are un- I-485 filing, it is recommend- Although the laid off plication filing and will thus
before they were laid off and der no such obligation with ed that their new employer worker can remain in the US be unable to produce an ex-
the I-485 has been pending respect to I-140 beneficiaries. file an extension of H-1B throughout the pendency of ecuted Supplement J. While
for less than 180 days.
Therefore, the laid off work- status on their behalf. They their adjustment application one can reschedule a USCIS
must do that within the even if no longer employed interview due to a medical or
60 day grace period that by the sponsoring employer, family emergency, unfore-
they have in H-1B status the worker may face a bit of seen events, or other person-
from the termination a predicament if the USCIS al circumstances such as a
under 8 CFR § 214.1(l) takes an action on the pend- wedding, funeral, or import-
(2). Remaining in H-1B ing adjustment application, ant family event that conflicts
status provides an added for instance, by issuing a Re- with the interview, one may
layer of security in case quest for Evidence (RFE) or not be able to reschedule
the I-485 is denied for scheduling an interview. If an adjustment interview on
any reason. However, the RFE requests an I-485 account of not being able to
once 180 days passes Supplement J, Confirmation present a Supplement J, but
from the I-485 filing, of Bona Fide Job Offer or it is always worth trying.
and they can port, they Request for Job Portability Suppose the laid off
would be more secure Under INA Section 204(j), worker does not have to re-
even if there is no under- and the adjustment applica- spond to any RFEs or attend
lying H-1B status. tion has not been pending for any interviews and USCIS
If the laid off work- 180 days or more, then the approves the adjustment
er’s adjustment applica- laid off worker is in trouble. application even though the
tion has been pending As there is usually a 90 day laid off worker no longer
for 180 days or more, deadline to respond to RFEs, works for the employer that
then they can port to a the laid off worker may be sponsored the green card or
new employer, and even able to submit a completed intends to work for that em-
m of self-employment, in a Supplement J, either signed ployer – then what? From the
CYRUS D. MEHTA & PARTNERS PLLC same or similar occupa- by a new employer or by foreign worker’s perspective,
tion that was the basis themselves if self-employed, they can argue that they were

of their I-140 petition if the 180th day of submitting willing to work for the em-
under INA § 204(j). their adjustment application ployer who sponsored them

  Once they can port un- comes around before their but the employer was not
   
­
€
‚   der § 204(j), the labor RFE response deadline. But willing to give them the job
certification and I-140 of course, there may be indi- in accordance with the I-140
petition are preserved, viduals who are not as lucky. petition and they should still
and the foreign worker If they do not respond to the be granted adjustment of
can be granted perma- RFE, then the adjustment status. There are decisions
2 6th Floor

    nent residence. 8 CFR will likely be denied. On the holding that as long as the

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