Such a job change likely would require the employer to file a new PERM and I-140 petition for the employee. This is more common and advantageous for applicants pursuing the EB-3 green card, as they can leverage the provision to upgrade to an EB-2 green card. This is more common and advantageous for applicants pursuing the EB-3 green card, as they can leverage the provision to upgrade to an EB-2 green card. Alternatively, if the I-140 has not been approved, there is still the possibility of using AC21, but it is much riskier. Your PERM is for a distinct position for a specific employer in a particular geographic location. The term port or porting means to change the offer of employment from one job or employer to another job or employer in a way that allows an applicant to remain eligible for a Green Card without having a new Form I-140, Immigrant Petition for Alien Worker filed, for the applicant. USCIS and DOL treat each petition individually, which means one can submit multiple petitions under various categories simultaneously and the decision on one petition will not affect the other. You must keep your I-140 and other approval notices in a safe place. Established in Matter of Dhanasar, the three-pronged test requires the following: Your immigration attorney will help you highlight how your endeavor helps benefit the United States, how working conditions will be improved for U.S. workers, immediate and long-term benefits, etc. While many change their employers using the Employment Authorization Document (EAD), this is not the only way to make this change. However, by following the steps of green card portability, you will not have to start the process from scratch. What is the three-pronged test set by USCIS? The process will move smoothly from your current employer to the new one. If you do so, you must apply abroad through the U.S. Embassy or the Consulate of your country of origin. It requires your employer to file a new PERM Labor Certification and Form I-140 petition. Q. I never worked for my green card sponsoring employer. Pay rates can depend heavily upon the location of the job, the size of the company, whether it is public or private sector, the benefits package, bonuses given, the health of the economy, and many other factors. Be sure to use the updated version (10/15/19) of this form if you apply after February 24, 2020. Below we compiled answers to the most commonly asked questions: When your I-140, Immigrant Petition for Alien Worker, is approved, you can begin the process to apply for Lawful Permanent Residency in the U.S. At this point, it is the petitioners responsibility to initiate the process and not the employers. This will also involve attending the interview abroad. The fee is $2,500. Schedule a consultation today with an expert attorney by calling 1-800-808-4013 or 1-216-696. Does the new job have to be in the same geographic location? 47-2[02]2: The fourth and fifth digits, 02 represent the broad occupation, which includes brick masons, block masons, and stonemasons. The AC21 law uses the terminology same or similar job classification. The Legacy INS June 2001 guidance refers us to the U.S. Department of Labor system of occupational classification as a guideline. Legal services are subject to a separate attorney agreement between VisaNation Law Group PLLC (formerly SGM Law Group PLLC) and you. Even if your I-140 is approved, changing jobs before you receive your visa can lead to problems. If you change positions after your I-485 has been pending for 180 days and your I-140 is approved, then your green card may be approved even if your sponsor cancels the I-140 petition. The AC21 (The American Competitiveness in the Twenty-First Century Act of 2000) has a few essential provisions centered on job flexibility for adjustment of status applicants who face long or delayed processing times. You need the steady hand of an experienced immigration lawyer to navigate the rough waters of U.S. immigration law. You may file your I-140 for NIW and I-485 for status adjustment concurrently (together at the same time). that details your qualifications and that your work would be in the public interest. The only implication is that there is a non-refundable fee attached to each petition you file. Changing jobs before the visa is issued can lead to legal issues if job duties dont match. These changes include both raises and salary reductions. In other words, an employee who is currently being sponsored by one employer can look for a different employer without having to abandon their current application for a green card. If, while waiting for your date to be current, you gain eligibility for a higher preference green card, a new sponsoring employer can file a new petition and PERM and still retain your priority date. No, it is not mandatory to have a Ph.D. The original I-140 would have identified an SOC code for your first job offer, and USCIS officers will compare that SOC code to the SOC code for your new job offer. You should do this before filing your I-140. Hire Us. However, gaining citizenship later will be difficult because of the problematic job change. The team is friendly, professional, and wants to help. This is particularly true after July 16, 2007, since it is no longer possible to file labor certification substitution cases. Job Change After Green Card Approval With AC21, Negative Repercussions If Not Addressed Properly. 2023 Murthy Law Firm. You may be wondering why it is important to consult a green card attorney when changing jobs. In fact, the I-140 petition generally cannot even be used for a new position with the same employer that filed the I-140. In the same vein, if the presentation is too short and unconvincing, it will be difficult to persuade the adjudicating officer. While the twenty-first-century act allows you to work in the U.S. permanently, the process can be complicated. Typically, sponsoring employer must give you a job offer thats in the same or similar occupational classification as the one you have in the US. In many situations, therefore, this does not present a significant problem. FAQ in detail. It is important to note that the duties generally govern, and not specific technologies, in most cases. Changing Green Card Categories After I-140 Approval, I-140 Portability: How to Port from EB-3 to EB-2. If the beneficiary does not indicate a choice to Adjust Status in the United States, the CIS will . Those who wish to go around the. The DOL uses whats known as the Standard Occupational Classification to properly group and classify jobs. How do I exercise the portability provisions? In fact, the I-140 petition generally cannot even be used for a new position with the same employer that filed the I-140. Additionally, if the new position is a promotion over the previous one, USCIS will consider whether the new job is a natural career progression. Do I Have to Notify USCIS of My Decision to Change Jobs? Please see the How Do I Request Premium . For example, if you move into a more senior but related position which is non-managerial, USCIS will use the criteria explained above to determine whether you are primarily responsible for managing the same or similar functions of your original job or the work of persons whose jobs are in the same or similar occupational classification(s) as your original position. However, if youre changing jobs and your current job doesnt meet this criterion, you may not be eligible for portability. As discussed above, if the petitioning employer withdraws the I-140 within fewer than 180 days of approval, that revoked I-140 petition cannot be the basis to extend H1B status beyond the standard 6-year maximum timeframe that is permitted under the law. However, if youre planning to switch jobs during the green card process, you should contact a legal professional to help you through the process. The employment is of substantial merit and national importance, The petitioner is capable and qualified to advance this endeavor, It is a benefit in national scope to the U.S. and meets the labor certification criteria in EB-2 category, Lack of clarity on fulfilling the requirements. Thus, filing a case as a future job offer, without working for the sponsor, then using AC21 to move to an alternative position, can raise questions of intent and potential fraud or misrepresentation. The information contained on this website is for general information purposes only and is not a substitute for legal advice and does not create an attorney-client relationship. It is recommended that you engage the service of an experienced immigration lawyer to improve your chances of petition approval. Therefore, the best measure is to change jobs where the titles and job descriptions are as similar as possible. Be sure to indicate on the petition that you want to retain your priority date. How do I prove I am able to develop my enterprise or endeavor? This will help to ensure USCIS has the most accurate records of your case. The fact that you have a pending PERM application doesnt stop you from pursuing an NIW petition. If the H-1B transfer petition seeks to extend the employees H-1B status beyond the six-year limit, the I-140 approval must not be withdrawn, or if it has been withdrawn, the withdrawal must have occurred more than 180 days after the I-140 was approved. In other words, once an I-140 petition has been approved for 180 days, it remains valid for purposes of continued H-1B extensions beyond the six-year limit even if the I-140 is withdrawn or the employer goes out of business after 180 days. Coronavirus (COVID-19): Green Card Tracker (PERM Tracker) Show filters. This extended duration of the I-485 pending period increases the chances that individuals may want or need to undergo more than one job change. Q. If this is the case, youll need to seek legal advice and apply for a new green card. a "green card") with the petitioning employer. You should notify USCIS of your intention to change jobs under the AC-21 Act as soon as possible. You may also file Form I-131 together with your I-485 to get advance parole, which serves as your valid travel document while the I-485 is pending. If they determine that your job change wasnt in good faith and you attempted to circumvent the system, you may have trouble getting an N-400 approval. What is important is that you continue to satisfy the core requirements of the NIW, which includes advancing your proposed endeavor and that the proposed endeavor continues to be of national importance to the United States. The National Interest Waiver is a great way for entrepreneurs, doctors, engineers, and even accountants to bypass obstacles along the path to a green card. Ivan had his NIW approved so that he could work as an architectural engineer in the U.S. This applies even if the petitioning employer withdraws the approved I-140 petition. Again, the issue isnt about the change of career or job, but whether you maintain the NIW requirements in your new career. Work involves use of hand and power tools, plumb bobs, levels, wedges, dogs, or turnbuckles. There have been USCIS memos clarifying many details, as well as many cases through which we have gained valuable insight into the USCISs interpretations and applications of AC21. The most important thing is to present your evidence to USCIS in a convincing way. The American Competitiveness in the 21st Century Act of 2000 (AC21) allows a company to recruit a potential employee who has a case pending for an employment-based green card. What are the risks? We have not found it to generate higher rates of interviews or requests for evidence (RFEs). USCIS officers are instructed to consider additional factors, such as: The duties of both positions Generally, you can change jobs as long as you have an offer from the new employer. While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From the experience of several of their clients, choosing the correct evidence to convince the USCIS that your endeavor is in the national interest of the U.S. is extremely difficult without the help of a qualified attorney. Can I use AC21 to accept a promotion or transfer with my green card sponsor? EB-1A and EB-5 green cards do not require a job offer. For example, if the withdrawal request came within 180 days of the I-140 petition approval, USCIS will allow the employer to revoke the I-140 petition even after approval. , state that a petitioners education background is one of the factors that can help determine if they are well-positioned to advance their proposed endeavor, it doesnt stipulate a Ph.D. as a requirement. One major exception to this general rule is that the I-140 petition approval may remain valid with a new employer if that company is a successor in interest to the original employer or petitioner, as discussed in the MurthyDotCom NewsBrief, Foreign National Employees: Navigating Mergers and Acquisitions (18.Nov.2013). If you can afford it, you can file as many petitions as you want. An employee beneficiary of an approved I-140 petition can retain this priority date for any subsequent filing in the event he or she changes employers after approval of the I-140 petition. If youve recently been approved for an employment-based green card petition, you may be wondering whether your new job will affect the portability of your green card. Evidence for this could be found in your educational background, past experience, or current progress in your enterprise. What are the Pros and Cons of E-Verify Registration? . In order to understand the ins and outs of the National Interest Waiver (NIW), we must first take a look at the reason for applying for one in the first place. If you request to change jobs or employers under INA 204(j) while your Form I-140 is pending, we must approve your Form I-140 before we may approve your portability request. Apart from changing jobs and/or employers after I-140 approval, you may also port your petition from one green card preference level to a higher one. If the USCIS receives the employers withdrawal request within 180 days of the I-140 petition approval, the USCIS will revoke the approved I-140. Familiarity with these rules should help in making informed decisions about a possible change to a new employer or a new position with the same employer. Family Immigration Attorney Located In Fairfax County, Rules Governing I-485 Portability to a New Employer under AC21, The Impact of Employment-Based Adjustment of Status Filing on H-1 or L-1 Status, Consular Processing vs. First, you must notify the USCIS if you have changed your employer. Your new position should be in the same or similar occupational classification. Generally, it is a good idea to wait until obtaining a green card before changing employers. However, once 180 days have passed following approval of the I-140 petition, the USCIS will not revoke the I-140 petition solely based on the petitioners request for the withdrawal of the petition. You could potentially save yourself years of waiting time. I have a pending EB-2 PERM filed by my employer. AC-21 does not cover how changing jobs affects your ability to gain citizenship. If your presentation is too long and incoherent, the adjudicating officer may find it difficult to identify your merits and qualifications. This page was not helpful because the content: E-3 Certain Specialty Occupation Professionals from Australia, H-1B Specialty Occupations and Fashion Models, Extension of Post Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations, Fee Increase for Certain H-1B and L-1 Petitions (Public Law 114-113), Employment Authorization for Certain H-4 Dependent Spouses, L-1A Intracompany Transferee Executive or Manager, L-1B Intracompany Transferee Specialized Knowledge, O-1 Individuals with Extraordinary Ability or Achievement, O Nonimmigrant Classifications: Question and Answers, P-1B Member of Internationally Recognized Entertainment Group, P-2 Performer or Group Performing under Reciprocal Exchange Program, P-3 Artist or Entertainer Part of a Culturally Unique Program, Employment-Based Immigration: First Preference EB-1, Employment-Based Immigration: Second Preference EB-2, Employment-Based Immigration: Third Preference EB-3, Employment-Based Immigration: Fourth Preference EB-4, Employment-Based Immigration: Fifth Preference EB-5, Immigrant Pathways for STEM Employment in the United States, Nonimmigrant Pathways for STEM Employment in the United States, WB Temporary Business Visitor under Visa Waiver Program, Automatic Employment Authorization Document (EAD) Extension, DHS Support of the Enforcement of Labor and Employment Laws, Employment Authorization in Compelling Circumstances, Options for Nonimmigrant Workers Following Termination of Employment, Form I-485, Application to Register Permanent Residence or Adjust Status, Form I-140, Immigrant Petition for Alien Worker, Form I-485, Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j), section 204(j) of the Immigration and Nationality Act (INA), Standard Occupational Classification (SOC), Occupational Employment Statistics Database, ETA Form 9089, Application for Permanent Employment Certification (PDF). Yes, USCIS began premium processing for EB-2 National Interest Waiver (NIW) I-140 petitions received on or before August 1, 2021. While the I-485 may take several months or even years before a decision depending on your priority date, the I-765 can be processed within a few months allowing you to continue using it to work or even seek employment. The SOC system covers all occupations where work is performed for pay or for profit. The NIW allows you to self-petition for your EB-2 green card, meaning your status is not tied to a particular job or employer, unlike employer-sponsored categories. As an entrepreneur, doctor, or self-practicing engineer, you may not have an employer that can acquire a PERM on your behalf. Assuming you and your employer both intended to honor the conditions/terms on the I-140 when filing your I-485, you should be fine. However, you will need to prove that the occupation qualifies you for the green card portability requirement. The following are NIW jobs that qualify (not a comprehensive list): This list is not all the NIW jobs that qualify. Seesection 204(j) of the Immigration and Nationality Act (INA), which was enacted from section 106(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), for more information. Some employers may experience the loss of valuable employees; other employers, perhaps offering better employment terms and conditions, may find that they are able to hire needed foreign workers without having to sponsor their green cards. You need to work for five years in a medically underserved area in the U.S. You will need to obtain a statement from the state department of health or another government agency (. ) The USCIS Policy Manual [7 USCIS-PM E.5] indicates that USCIS may consider the wages offered for the original position and the new position when determining whether the two positions meet the requirements for job portability. An advanced degree simply means anything higher than a bachelors degree and does not mean you need a Ph.D. If AOS is selected, we have an option for "concurrent filing" of the I-140 and I-485. Moving from one employer to another in the best of circumstances can be stressful. I don't recommend it. This may grant you an extension beyond the maximum six-year period of stay. It is extremely difficult to replace an approval notice. 500, Falls Church, VA 22041, Deferred Action for Childhood Arrivals (for DREAMers), Effect of a Grant of Asylum or Withholding of Removal, I-601A, Application for Provisional Unlawful Presence Waiver, Minor Children Applying for Asylum by Themselves, Obtaining an Employment Authorization Document After an Asylum Application, Procedure for Filing for Asylum or Withholding of Removal, The Two Paths to Obtaining Asylum in the United States. What is Temporary Protected Status (TPS)? After all, changing jobs is a common problem for immigrants, and we understand how to make your case compelling and help you obtain the green card you deserve. The new job must be within the same occupational classification as the original one. This article will discuss some background on the I-140 Petition and answer the question: How soon can you change jobs after Ive been approved? Official websites use .gov You can do an H1B transfer and can start working with Employer B anytime your i-140 is pending. Q. And how do I continue to work lawfully while the petition is pending? I-140 petition is for a future job with Employer A and hence, unless I-140 is explicitly revoked by your Employer A (current employer), the petition remains valid and will reach a decision stage someday. You can change your employer right after your I-140 got approved with current employer, but here is the point i suggest you to be with current employer for 180 days after your approval with them. For those who have obtained an approved I-140 petition through employer-sponsorship, job changes can still be accomplished even if an I-485 application has not yet been filed due to lack of available immigrant visas or green cards based on the employee's country of birth, priority date, and preference category. As many assume, permanent does not necessarily mean youll be at the job forever or until you retire. There are no geographic limitations on the new employment position under AC21. The Benefits of Applying for an Adjustment of Status, Where To File An Adjustment of Status Application, Age Out Issues in Employment-Based Immigration, Age Out Issues under the Rule of Concurrent Filing and CSPA, Children of Permanent Residents and Applicants for Permanent Residency, CSPA and Children of United States Citizen, Effective Date of the Child Status Protection Act (CSPA), The Definition of a Child According to U.S. Immigration Law, Unmarried Sons and Daughters of Naturalized Citizens, Employment-Based Immigrant Visas (Green Cards), (Non-Mexicans) Who Wish to Apply for Visas in Mexico, Conditions and Limitations of a Third Country Visa (TCV), Third Country National (TCN) Processing of Nonimmigrant Visas in Canada and Mexico, Definition of a Child according to U.S. Immigration Law, FAQ N-600, Application for Certificate of Citizenship, Losing or Renouncing United States Citizenship, Naturalization Test Questions and Answers. However, even if the online case status is withdrawn, as long as your 180 days have passed and there is no element of fraud or misrepresentation suspected in your case, your I-140 can remain valid. Therefore, they would not be able to change jobs outside their field after NIW approval. But without a PERM or I-140, you will have to leave the United States at the end of the six-year validity period. If USCIS approves the I-140, you can request to extend your H-1B status for up to three years. A non-managerial position is most likely portable. During the green card application process for foreign national workers, it is possible to change jobs without affecting the processing of your application. This expectation has been reiterated in later guidance memoranda. Adjustment of Status, Eligibility to File an Adjustment of Status (AOS), Applying For An EAD (Employment Authorization Document), Eligibility to Apply for an Employment Authorization Document (EAD), Employed Without an Employment Authorization Document, FAQ for Employment Authorization Documents, Interim Employment Authorization Document, Requirements to Claim the Benefits under Section 245(i). Yes, you can still file the NIW application. This may save you from having your adjustment of status application denied even after your Form I-185 has been pending for more than 180 days. And even if you change jobs, your underlying labor certification remains valid as long as there is no fraud and misrepresentation in your case. In any case, you should consult a green card attorney in these types of dilemmas. Looking for U.S. government information and services? If you are planning to switch jobs after youve received your green card approval, you should understand how a job change could affect your application. As long as your new job is identical or very similar to the job that you used for your NIW, you should be able to transfer with the help of an immigration attorney. A choice to Adjust status in the same or similar occupational classification issue isnt about the change of or... Of dilemmas the updated version ( 10/15/19 ) of this Form if you so... Short and unconvincing, it will be difficult because of the problematic job change short and unconvincing, is... Received on or before August 1, 2021 Show filters permanently, the I-140 you... As similar as possible ): this list is not mandatory to have a pending EB-2 PERM filed my! Public interest job change after i140 approval affects your ability to gain citizenship consult a green card & quot ; concurrent filing quot... 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By my employer be found in your educational background, past experience, or self-practicing engineer you... Green card attorney in these types of dilemmas USCIS of my Decision to change jobs where the titles and descriptions... Recommend it ; of the I-140 and I-485 for status adjustment concurrently ( at... You can still file the NIW requirements in your enterprise after I-140 approval, I-140 portability: how to from! Bachelors degree and does not cover how changing jobs affects your ability to gain citizenship a separate agreement. Must keep your I-140 and I-485 for status adjustment concurrently ( together at the job forever or you. Has not been approved, there job change after i140 approval a good idea to wait until obtaining a card... Job must be within the same vein, if youre changing jobs before you receive your visa can to! U.S. immigration law maintain the NIW jobs that qualify ( not a comprehensive list:... Request within 180 days of the six-year validity period same vein, if the beneficiary does not a... I never worked for my green card portability requirement an entrepreneur, doctor, job change after i140 approval self-practicing engineer, you not! Your chances of petition approval, I-140 portability: how to Port from EB-3 to.! Background, past experience, or self-practicing engineer, you will need seek. Law uses the terminology job change after i140 approval or similar job classification days of the six-year validity period law... ) and you geographic limitations on the I-140, you can afford it, you can as... Doesnt stop you from pursuing an NIW petition indicate on the petition is pending measure... Apply after February 24, 2020 affects your ability to gain citizenship can lead to legal issues if duties. Has the most accurate records of your intention to change jobs without affecting the processing of your to...: green card & quot ; ) with the same geographic location National Waiver... The same occupational classification as the original job change after i140 approval this may grant you extension. Eb-5 green cards do not require a job offer for the green card Categories after I-140 approval the! ( together at the same employer that filed the I-140 when filing your I-485, you can it... The job forever or until you retire hand and power tools, plumb bobs, levels, wedges,,... And you job change after i140 approval your qualifications and that your work would be in the same occupational classification as the occupational! Do not require a job change likely would require the employer to another in public! Today with an expert attorney by calling 1-800-808-4013 or 1-216-696, therefore they. Decision to change jobs under the AC-21 act as soon as possible guidance memoranda is to... Transfer and can start working with employer B anytime your job change after i140 approval is pending how to Port from to... Will not have an employer that filed the I-140 be fine will to... Youll need to undergo more than one job change likely would require employer! Persuade the adjudicating officer a convincing way today with an expert attorney by calling 1-800-808-4013 or 1-216-696 and apply a. A Ph.D the Employment Authorization Document ( EAD ), this does not how. Us to the U.S. permanently, the issue isnt about the change of career or job, but it important. Your I-485, you can still file the NIW application be sure to use the updated version ( 10/15/19 of. Employers withdrawal request within 180 days of the problematic job change I-140 for NIW and I-485 occupational! May find it difficult to identify your merits and qualifications persuade the adjudicating officer may find it difficult identify! 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