Green card applicants often ask if they are able to change employment while waiting for final approval. The answer is yes, if you follow green card portability rules.
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. The green card categories requiring a job offer and subject to portability rules are EB-1B Outstanding Researcher, EB-1C 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.
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. Here's what you need to keep in mind.
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 or goes out of business. 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.
If your employer withdraws the I-140 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 government can revoke the I-140 petition at any time for other reasons, such as fraud or other ineligibility. As a result, your I-485 application will be denied even if it has been pending for 180 days.
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 may not 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 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. That means your I-485 application will be denied unless a new I-140 petition is substituted.
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? 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.
Also, self-employment is eligible for portability as long as all other criteria for portability has been met.
5. Will the new employer sign off on the I-485 Supplement J for your I-485 application? 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. In the Supplement J, you must fill out information about the new job so the government can determine whether it is similar to the sponsored position. Be sure the new employer agrees to cooperate and sign the Supplement J before you change jobs.
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.