If you are applying for a green card based upon employment sponsorship, you are able to change employment while waiting for final approval if you follow “portability”rules.
On November 18, the United States Citizenship and Immigration Service (USCIS) announced some important updates and changes to these rules that go into effect on January 17, 2017.
The Final Rules for Certain Employment-Based Immigrant and Nonimmigrant Visa Programs confirm that if your I-485 adjustment of status application has been filed and pending for 180 days or more, you are eligible to change jobs and/or employers and continue your green card application if certain conditions are met:
>You must request portability by submitting Supplement J to the form I-485, Confirmation of Bona Fide Job Offer or Request for Job Portability. Supplement J can be filed before or after you change jobs and must be signed by the new employer. Interestingly, you can get pre-approval of the job change if you send in Supplement J before changing jobs.
>Your sponsoring employer's I-140 petition must be approved. If you request portability before the I-140 is approved, the USCIS must approve the I-140 petition before granting portability. Generally, if the I-140 petition meets all eligibility requirements at the time of filing, the USCIS will approve the petition. However, if the employer withdraws the pending I-140 petition or goes out of business before the I-485 application has been processing for 180 days, the I-140 petition and the I-485 application will be denied.
>The approved I-140 petition must not be revoked. If your sponsoring employer withdraws its sponsorship within 180 days of the I-140 approval and before your I-485 application has been pending 180 days, the I-140 petition will be revoked. Also, your I-485 application will be denied unless a new I-140 petition is substituted. If your employer withdraws after 180 days of the I-140 approval or after your I-485 application has been pending 180 days, the I-140 petition will remain approved and portability applies.. Of course, the USCIS can revoke the petition at any time for other reasons, such as fraud or other ineligibility.
>Your new employment must be in the same or similar occupation. The rules no longer require a comparison of the standard occupational code (SOC) of the new position to the original sponsored one. Instead, to determine whether the new position is the same or similar to the sponsored position, the government will compare the job descriptions, wages offered, and required skills, experience, education, and training between the two jobs.
If you receive a promotion with the sponsoring employer, your new position could qualify for portability as well if it meets career progression requirements as described in the USCIS policy memorandum, Determining Whether a New Job is in “the Same or a Similar Occupational Classification” for Purposes of Section 204(j) Job Portability. The policy states that “if evidence provided by applicants establishes that, in their new positions, they are primarily responsible for managing the same or similar functions of their original jobs or the work of individuals whose jobs are in the same or similar occupational classification(s) as the applicant's' original positions,” the new position may be sufficiently similar for portability purposes.
The final rule also affirms that green card applications based upon EB-1A Extraordinary Ability and EB-2 National Interest Waiver (“NIW”) do not fall under portability rules. Rather, applicants in these green card 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. Therefore, Supplement J is not required for NIW or EB-1A applicants.
I hope this article helps you understand basic immigration requirements, but please don't consider it as legal advice or legal opinion about your specific circumstances. Portability rules are complex so contact a qualified immigration attorney to assure a safe transition to your new employment.
For legal advice and guidance for your unique situation, you are invited to schedule an immigration strategy session with me.
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