Changing employers half way through a job sponsorship
On October 17, 2000 President Clinton signed the American Competitiveness in the 21st Century Act (AC21) into law, and most of the provisions became effective immediately. AC21 allows the beneficiaries of certain permanent resident applications to transfer to new jobs while their adjustment of status applications are pending, so long as certain conditions are met. AC 21 was passed in recognition that long delays in USCIS adjudication of Adjustment of Status applications unfairly require immigrants to remain with their current employer for years while their applications are pending. As a result of this new law, the Department of Homeland Security issued a memorandum to provide field offices with guidance in processing Form I-485 (Application to Register Permanent Residence or Adjust Status), when the beneficiary of an approved Form I-140 (Petition for Immigrant Worker) is eligible to change employer under § 106 (c) of the AC21.
In addition, AC21 allows a beneficiary of a petition to change employers to begin the new employment upon filing the petition, rather than waiting for the petition to be approved. The petition must be nonfrivolous, and the beneficiary must be a non-immigrant admitted to the United States (no particular nonimmigrant category is specified, but the individual must have been previously issued an H-1B visa or otherwise provided H-1B Status). The individual must not have been employed without authorization since his/her last date of lawful admission before the petition was filed, and must be in an unexpired period of stay when the petition is filed.
This article is intended to answer the questions that may rise under this situation.
How has this rule changed the law?
Previous Service regulations required an alien worker to first obtain approval of the underlying I-140 before applying for permanent resident status based on the Form I-485. Under the new law, these two forms can be filed at the same time.
When will the approval of an I-140 employment-based (EB) immigrant petition remain valid if an alien changes jobs?
The I-140 will remain valid if:
- Form I-485, Application to Adjust Status, on the basis of the EB immigrant petition has been filed and remained unadjudicated for 180 days or more, AND
- The new job is in the “same or similar occupational classification” as the job for which the certification or approval was initially made.
What is the meaning of a “job in the same or similar occupational classification”?
If the job title or job duties change significantly, this is considered a job change and new labor certification is required, and hence new I-140 is also required. Usual and normal raises in salary, however, are not considered job changes.
What if the Form I-485 has been pending for fewer than 180 days?
The approved Form I-140 will not remain valid with respect to a new offer of employment.
What happens if the employer withdraws the Form I-140 before the Form I-485 has been pending for 180 days?
If approval of the Form I-140 is revoked, or the Form I-140 is withdrawn before the alien’s Form I-485 has been pending 180 days, the approved Form I-140 is no longer valid with respect to a new offer of employment, and the Form I-485 may be denied.
What if the employer withdraws the approved Form I-140 on or after the date that the Form I-485 has been pending 180 days?
The approved Form I-140 will remain valid under the provisions of §106 (c) of AC21, under the assumption that the alien will submit evidence that the new offer of employment is in a “same or similar” occupational classification as the offer of employment for which the petition was filed.
However, if the approved Form I-140 is withdrawn, and the alien has not submitted evidence concerning the new offer of employment, the adjudication officer must issue a Notice of Intent to Deny the pending Form I-485.
If a beneficiary of a labor certification has had his I-485 application pending for six months and receives an offer to work for a new employer in the same exact job, can he switch employers and still receive his permanent residence based upon the original employer’s petition?
Yes. If the adjustment application has been pending for 180 days, he may change employers and continue to receive his permanent resident status based upon the previous employer’s I-140 and/or labor certification.
If an entry level computer programmer has had his I-485 application pending for six months, can he be promoted to senior computer programmer?
Yes, if the adjustment application has been pending 180 days, the employer may promote him to a position in a similar occupational classification.
Can an employer withdraw an I-140 petition after an adjustment application has been pending for more than 180 days and reuse the labor certification by substituting an alien?
Probably not, unless the beneficiary chooses not to pursue the adjustment application by obtaining a new job in the same or a similar occupational classification prior to approval of the adjustment application.
If an adjustment of status application is pending for more than 180 days, can the alien leave his current position to take up a position that is the same as the one described in his I-140 position, but is in a different city or state?
Yes. Taking up a new job in the same field is called “portability.” A difference in geographical location should NOT be a reason to deny a request to use 180 days portability. The relevant inquiry is whether the position is the “same or similar” to the original position. The location of the employment is not determinative.
Will the priority date be affected when an alien changes employers based on 180-day portability?
No. The priority date continues to be determined at the time of the initial labor certification filing with the Department of Labor or at the time the initial I-140 immigrant petition is filed with USCIS.
Must the alien have a new offer of employment at the time the I-485 is being adjudicated under the I-140 portability provisions?
Yes. The alien cannot still be looking for “same or similar” employment at the time the I-485 is being adjudicated under the adjustment portability provisions. The alien must be able to show there is a new valid offer of employment at the time the I-485 is adjudicated.
When the alien no longer intends to be employed by the employer that sponsored him on the I-140, and has found a new employer who is willing to sponsor him, what does the alien’s new employer have to do?
At the time of the interview, the new employer must provide the following documents: 1) its tax returns, in order to prove that it can pay the prevailing wage, 2) a job letter verifying that the job offer exists, detailing the job title, description, and salary, 3) an offer of employment at the prevailing wage.
What happens when the job remains the same but there is change in the ownership of the company or division where the job is situated?
The INS attempted to provide clarification in a 1996 memo. The memo made three points relevant to corporate organizations. First, employers need not file a new or amended petition if the company merely changes its name. Instead, the Petitioner should advise the INS of the name change when it next files a request to extend the H-1B worker’s stay. Second, changes in the ownership structure of the H-1B employer generally do not require a new or amended petition if the petitioning entity remains the employer, provided the new owner assumes the previous owner’s duties and liabilities. Third, when the employer merges with another firm to create a third entity, however, a new or amended petition must be filed, since the merger has created a new legal entity, and therefore a new employer.
If an H-1B worker has a new H-1B petition filed by a prospective employer, when can he begin employment with the new employer?
As long as he has maintained status since his last entry, he can begin working with the new employers as soon as the H-1B petition is filed. This will apply to petition filed before, on or after the date of the enactment.
Can someone with a change of employer H-1B petition pending since before AC21’s passage change employers now under AC21 §105, before the petition is approved?
Yes. The AC21 §105 H-1B portability provision applies to petitions filed before, on, or after the date of enactment.
What happens if an alien leaves his employer right after obtaining his “green card”?
If he leaves too soon, USCIS may claim that he did not intend to take the job up on a “permanent” basis. If the employer (or even a jealous co-worker) is dissatisfied with his leaving too soon, they can file a complaint with USCIS, and USCIS may either take any action or not depending upon the circumstances. USCIS may otherwise find out about his premature leaving when, for example, he later applies for citizenship or petitioning for relatives.
If USCIS discovers that the employee was waiting for his/her immigration to be complete before jumping to a new job, then they may charge him with fraud. If, on the other hand, it appears that the employee really did intend to stay with the petitioning employer indefinitely at the time of immigrating, but a legitimate reason later developed for leaving (like employer’s business took an unexpected downturn and the employer had to lay off workers), then there should be no problem.
What if the alien is laid-off before getting his “green card”?
He would have to start the green card process again. If the labor certificate is approved, it will not be valid as it is for job in future and that job must be available now, which is not the case. The person can use his priority date from the previous company if his I-140 was approved before he was laid-off.
Even if the person has applied for adjustment of status and received an employment authorization document (EAD), he can only work additionally for any other employer as long as he keeps working for the sponsoring employer. In other words, if he gets laid off, everything including his H1B visa, labor certification, I-140, I-485, EAD, AP is invalid. If the person is maintaining valid non-immigrant status, he has 10 days to leave the country. If the person is on EAD/AP, he has to immediately leave the country.