Green card applicants often ask if they are able to change employment while waiting for final approval. The answer is yes, if you follow established portability rules. Generally, if your I-485 application has been pending for 180 days or more, you are eligible to change jobs and continue your green card application. However, portability rules have pitfalls you must avoid, or your green card application can be denied.
Here are five key questions you need to get answered before making any change in employers.
1. Is my application dependent upon my employer? If your green card category depends upon a job offer, then your application is dependent upon your employer (“sponsor”) and you must observe portability rules to avoid denial of your green card application. Currently, the green card categories requiring a job offer and subject to portability rules are EB-1 Outstanding Researcher, EB-1 Multinational Manager, EB-2 and EB-3 workers based upon labor certification.
Green card applications based upon EB-1 Extraordinary Ability and EB-2 National Interest Waiver do not require a job offer and do not fall under portability rules. Therefore, applicants in these categories can change employers at any time so long as they continue to work in the field of extraordinary ability or national interest, as applicable.
2. Has the I-140 petition been approved? If your I-140 petition has been approved, then your chances of approval based upon portability are better.
If you change positions after your I-485 has been pending for 180 days and your I-140 is approved, then your green card can be approved, even if your sponsor cancels the I-140 petition. On the other hand, if you change positions while your I-140 petition is awaiting approval, your sponsor's withdrawal of the I-140 petition will cause denial of your I-485 application.
Even if your sponsor does not withdraw the pending I-140 petition, the government could deny the I-140 petition for other reasons. As a result, your I-485 application will be denied even if it has been pending for 180 days.
To avoid these risks, wait until the I-140 is approved before changing positions.
3. Has the I-485 application been pending for more than 180 days? Even if your I-140 petition is approved, it's risky to leave your employment before the “safe harbor” period starts.
Although the government cannot deny your I-485 application on the sole basis that you left your employer before 180 days have passed, it can issue a request for evidence (RFE) to determine whether the original offer of employment was bona fide. Your sponsor's support could be necessary to respond to the RFE and its refusal to cooperate could mean denial of your I-485 application.
Also, if your sponsor withdraws the approved the I-140 petition before the 180 days have run, portability will not apply and your green card application will be denied.
To avoid these risks, wait until your I-485 application has processed for 180 days before changing positions.
4. Is the new employment in the “same or similar” occupation? To determine whether the new position is comparable to the sponsored position, the government looks at the following factors and you should do the same:
- The description of the job duties in the PERM (ETA9089) application or I-140 petition and the job duties of the new employment.
- The standard occupational classification (SOC) code shown on the ETA9089 application or I-140 petition for the sponsored position and the SOC code for the new position.
- A substantial difference between the previous wage and the new wage (higher or lower).
5. Will the new employer provide a supporting letter for your I-485 application? The government usually requires an update on your employment status before approving your green card. Your new employer should provide a letter describing your new position, including duties and responsibilities as well the salary of the position. Be sure the new employer agrees to provide this letter before you change jobs. In a proposed rule that may become law in late 2016, the government could require you to submit a specific form when you change jobs. But currently, there is no form to complete when you “port” to a new position.
Portability rules are complex. Contact a qualified immigration attorney to ensure a safe transition to your new employment. To request an immigration strategy session and get advice and guidance for your specific plans to change jobs or positions, please call 214-472-2109 or complete this request form.
The information provided in this article is intended to help you understand basic issues involved in the immigration process, and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. You should not act or rely upon the information in this article without first seeking the advice of an immigration attorney.
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