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The Adjustment of Status Portability Rule: Things to know before changing jobs An adjustment of status, a final step in the green card process, is an application filed by an alien who is physically in the U.S. to adjust his or her status from a nonimmigrant to an immigrant status (permanent resident status) after his or her immigration petition has been approved. Applicants not born in Mainland China or India, may also have the option to file their I-140 or I-485 concurrently. In order to be eligible to file an adjustment of status application, an alien must meet certain criteria including physical presence in the United States, an immediately available visa number, and no statutory bars to adjustment. Additionally, there must be no change of circumstance, which for adjustments based on I-140 employment-based petitions sponsored by a specific employer, includes job changes. Aliens who petitioned for permanent residence under the EB-1(b), Outstanding Researcher category or under any category—EB-2 (excluding NIW) and EB-3—that requires a Labor Certification, for example, cannot change jobs during the first 180 days after the adjustment of status is filed. After the first 180 days, however, adjustment of status applicants can utilize the portability rule to change employers. The portability rule is derived from the American Competitiveness in the 21st Century Act (AC21) to address the ongoing need for skilled labor and the current delay for adjustment of status approvals. Under the current law aliens with approved I-140s may leave the sponsoring employer for another employer if their adjustment of status application has been pending for 180 days and the new employment is in the same or a similar occupation. Similarly, if an alien’s I-485 has been pending for more than 180 days and his or her I-140 has not been approved—as is the case with concurrently filed adjustment applications—he or she may also change employers if the employment is in a similar or the same position. The USCIS has clarified that “changing employers” does not necessarily mean the alien beneficiary must worked for the I-140 sponsoring employer during the first 180 days and then leaves for another job. There is currently no requirement that the alien beneficiary work for the sponsoring employer during those pending 180 days. Instead, the I-140 sponsoring employer must maintain the offered position for at least 180 days after the I-485 is pending. Of course actual work provides very strong evidence of a good faith job offer and further, in practice, most employers will only sponsor individuals who intend to continue working for them. Thus, working for an employer other than the sponsoring employer, even after the 180 days or even if an alien never worked for the original employer, carries certain risks: if an employer withdraws the immigration petition, the adjustment will be denied. Furthermore, if the USCIS requests more evidence for the immigration petition, an employer for whom the alien no longer works may fail to respond, leading to a denial of the I-140 and the I-485. Basically, a change of employer, both before and after approval of the employer-sponsored immigrant petition, while possible, may lead to conflicts of interest for the attorney retained by the original sponsoring company. An attorney for a company with no vested interest in an alien may not have reason to continue assisting that alien with his or her pending adjustment of status. Those finding themselves facing this particular situation can help themselves avoid potential risks by finding new representation for their adjustment applications, since an attorney who takes full interest in a client’s case is important. Services and issues related to the portability rule and new representation include the filing of a new G-28 with USCIS and updating the USCIS of the employer change under the portability rule. Furthermore, an attorney with full interest in a client’s case will be more willing to push the USCIS to process the I-485. This is exactly where the knowledgeable attorneys at Zhang & Associates can help. Our attorneys are skilled and experienced in dealing with I-485 cases based on all categories of immigration petitions and can assist I-485 applicants in all stages of their I-485 pending period. From start to finish, we make it our goal to provide the best service possible and make our clients’ American dreams a reality. ------ ------ (03/05/2009) For more immigration news, please click here |
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