A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Monday, October 30, 2023

Change of Employer in the middle of Green Card Application Process

Phone by Anna-Tarazevich

Change of jobs is quite common in today's job market.  One may decide or be forced to change jobs due to company down-sizing, reorganizations, better opportunities, family situations, etc. However, for foreign workers in the United States, they have more to consider in deciding whether to change employers or not.  

In the majority of cases, foreign nationals require sponsorship by a U.S. employer in order to be able to work legally in the country.  For example, a professional worker who works under the H-1B visa program requires a separate employer application for each position that they engage in. The situation becomes more complicated if they are in the middle of their green card application process.  Would the employer cancel the green card application after their departure? Can a foreign worker somehow transfer the pending case to a new employer? These are critical questions for foreign workers to consider.

The two main applications involved are the I-140 visa petition filed by the employer and the I-485 adjustment application filed by the applicant.  A job-changing employee's options largely depend on the status of each or both of these applications in the green card application process.  

The best case scenario for a foreign worker is that they have properly submitted their I-485 application, and it has been pending for at least 180 days.  In this case, the foreign worker is allowed to "port"or move the whole green card application to a new employer under section 204(j) of the INA, provided certain technical requirements are met.  The foreign worker should be able to continue with their application unless the I-140 petition was somehow subsequently revoked based on substantive reasons.  What if the I-485 was pending for less than 180 days?  It would then depend on the employer actions.  If the I-140 is ultimately approved and remains approved for 180 days, the case can go on as above. If the I-140 was withdrawn or cancelled by the employer within 180 days, then the foreign worker would not derive any benefits at all and must restart their application again.

Sometimes, an employee has to change jobs with only a pending or approved I-140 petition. In this situation, porting of the green card application to a new employer would not be possible.  However, if the I-140 petition filed by the initial employer has been approved and remains approved for at least 180 days, the employee can generally be able to keep the priority date for future applications.  Still, the ability to be able to keep one's priority date is a huge advantage, given the long waiting times for immigrant visas.  A new employer must restart the application process again, typically from PERM labor application, but the employee would be able to keep their “space in line,” so to speak.  If an employer decides to cancel or withdraw the I-140 petition after 180 days, it would not make a difference.  

Due to visa shortage, many foreign workers must wait years before they can receive their employment-based green cards.  During this lengthy application process, job changes are sometimes inevitable.  Foreign workers should always be on the lookout for possible employment changes. Careful planning and correct legal information would enable them to make the transition safely. 

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