Continuing green card process after leaving the company HELP

[lanwarrior]

Hi all,

I was working in the US under H1-B and my company was processing my green card application. Due to personal reasons, I left the company in February 2007. At this time, my H1-B still valid until mid 2009 (this is the 2nd application and by mid 2009, I'd have completed the 6 years time limit).

At the time I left the company, the company has NOT filed my Labor Certification through PERM nor filed the application with US Immigration (USCIS). However, the company's immigration lawyer has done the following:

- Obtained and verified all the required document for filing PERM (previous empoyer letters, copies of past visa, etc.)
- Complete the "hiring" process as part of the Reduction-in-Recruitment (RIR) process. This involve putting an ads in newspaper for my position and interviewing people to show that the company cannot find a suitable candidate to replace me.

I believe that few days after I left, the immigration lawyer was ready to file the PERM application, having completed the above. Also, when I l

It is now in May 2007 and I would like to return to the company and continue the green card process. The company is willing to hire me back, get my H1-B and continue the green card process.

However, they're confused as how to proceed with this given that there is a "break" with my employment with them. Also, they're wondering if the whole process will take longer, given my condition above, that the company won't be able to file the application to USCIS (after getting PERM approval) BEFORE my H1-B ran out in mid-2009.

Ideally, the company would like to do the following:
- Hire me and process the H1-B (I believe I am not subjected to the cap) using Premium Processing
- The company will treat me as if I never left. They'd chalk it up as "leave of absence" but no longer receive salary.
- Once H1-B approved and start work, continue the green card process by simply filing the PERM application immediately with all the documents they have since BEFORE I left the company in Feb 2007

Can anyone provide some experience in this area?

[lanwarrior]

Anyone?

[SYH]

No offence but the immigration lawyer doesn't know how this works?

[lanwarrior]

The immigration lawyer they hired is a bunch of idiots. There is an instance that another employee had to leave the country because the lawyer didn't file the H1-B extension on time. The company is thinking of replacing them.

The lawyer said it's possible but never give a clear idea how.

[SYH]

Well that's just poor
Frankly you will justhave to call the source and ask them

[Administrator]

.

There may be a problem with you not being paid for the "leave of absence." Check into it, since I'm not an immigration specialist.

But, your tax records as an H-1B holder probably have to be in order .. &/or proper paperwork needed to have been filed before the fact of such a leave. Rather than after the fact (a week or two is different than 2-3 months or more).

If the USCIS doesn't see this as a break in your employment, then there shouldn't be any serious problems .. minor ones may still crop up.

If it is determined that this is a true break .. resignation/termination followed by re-hire .. then it could get rather serious. As in, making you get a new H-1B or other work permit.

That same break in employment, if any documentation went through the official channels and is filed with USCIS, you need to be aware of it and determine the exact policies that apply. The processing of the greencard might have to begin again.

Just some thoughts .. I've had similar concerns in an EU country where the local tax office made me pay taxes for several months that I didn't work (had to funnel it through a company as back-taxes with penalties to 'document' that I had 'worked' to meet residency requirements). The law is written such that the contiguous tax record is the determining factor regarding my residence documentation.

Watch out for that.

The Admin