The immigration process to achieve legal permanent residency is usually very lengthy. During this process, many life changes can occur, such as getting a new job offer. A change in jobs can create problems if you are in the middle of the immigration process, especially if you are the beneficiary of an employment based petition. This might be the case especially if you are from a country with high emigration rates such as China or India, where having an early priority date can cut down on the green card wait time significantly. Furthermore, the new employer might have to start the sponsorship all over again, cost time and money. However, in certain cases, an individual can transfer their green card process to a new employer seamlessly. By transferring the prior employer’s immigration petition to the new employer, it saves the new employer resources and continues the immigration process for the immigrant without disruption.
Pre-AC 21 Requirements
Before the American Competitiveness in the 21st Century Act (AC21) was passed, the default rule for an employer-sponsored immigration petition requires that alien beneficiaries work for a reasonable amount of time for their sponsoring employer after obtaining a green card, and to have a bona fide job offer during the green card process. To improve job mobility and stimulate the economy, AC21 was passed. A provision in AC21 allowed for the porting or transferring of a green card process to a new employer so that when an immigrant changes jobs, the new employer will no longer have to restart the sponsoring process. The AC21 rules are simply an additional immigration benefit for those who meet the requirements, but the default rules still apply for those who do not.
When can you transfer under AC21?
Under AC21, when the beneficiary of an approved I-140 employment-based immigration visa petition files an application to adjust his or her status to that of a lawful permanent resident, and that application remains pending for more than 180 days, the beneficiary may then “port” to a new job if that job is in the same or similar occupational classification as the original one. Essentially, you can transfer your green card application if 1) the I-140 from your first job has been approved or is approvable when filed concurrently with I-485, 2) the I-485 filed has been pending for 180 days or more (starting for the receipt date), and 3) if your new job is considered the same or similar to the original job. If you meet these three requirements, then your new employer will not have to apply for new labor certification, I-140, and I-485. If you do not meet these requirements, you will need to follow the default rule of working for the initial sponsored employer after getting the green card, and having a bona fide job offer during the adjudication of your petitions in order to retain your green card process. In essence, you can change employers before the I-485 has been pending for 180 days but your previous employer must still have a job offer on the table and you must return to your previous position once you have your green card, which is a rare situation.
One of the key issues in determining whether you can transfer your immigration process to a new job is whether the new job is considered the same or similar enough to the prior job. To clarify this requirement, USCIS released a policy memo. According to the memo, USCIS officers should look to a multitude of factors while the ultimate decision is up to their discretion. Officers will look to job duties, skills, experience, education, training, licenses or certifications specifically required to perform the jobs, and the wages offered for each job. Furthermore, officers will look to the Standard Occupational Codes from the Department of Labor. When looking at the codes, officers will look for whether the two jobs fall into the same broad occupational code. For example, Computer Programmer, Software Developer, System Software and Web developer, all have different codes but fall under the same board category. This will be viewed favorably when comparing similar jobs. In addition, if the codes are different, officers will look for job progression. It is natural for one to change jobs that will further their career. As such, officers will look to whether the next job is a progression from the prior job. Specifically, officers will see if the new job duties include the management of the prior job’s duties. Based on the factors listed, the immigration officer will exert his or her discretion to determine if the two jobs are the same or similar enough.
What happens when I-140 and I-485 was filed concurrently?
Often times, the I-140 and I-485 will be filed concurrently by the previous employer. When filed concurrently, the I-140 might not be approved during a pending I-485. In this situation, if it has been 180 days or more since they applications has been pending, then the employee can transfer the applications to a new employer as long as the I-140 is eventually approved. This scenario is advantageous because you are already accruing the 180 days while the I-140 is pending, saving time. When filing separately, you will have to wait until the I-140 is approved, and then wait an additional 180 days after the I-485 filing.
How to Transfer?
If you do want to take advantage of the portability of the green card process, you must notify USCIS, because they will not have knowledge of the job change. When you have met the standards that will allow you to transfer your immigration process to a new job (I-140 approval, I-485 pending for 180 days, and the new job is the same or similar to the prior job), then you can notify USCIS of the job change. This can be done by filing supplement J to the pending I-485.
Different Scenarios
Sample Case #1
You have been working for a company that has sponsored you for an I-140 and subsequent I-485. The I-140 has been approved and you now have a pending I-485. The I-485 has been pending for 180 days. You have recently received a job offer for a more preferable position but you do not want to redo your green card process, what can be done?
In this case, the question is whether the new job is similar enough to the prior position. Because the I-140 is approved and the I-485 has been pending for 180 days or more, the only standard to meet is similarity. USCIS uses a list of factors to determine this so there is not generally a black or white answer. However, if the new job duties encompass the old job duties, it is a good sign that they are similar. Please consult with an immigration attorney to better determine the outcome.
Sample Case #2
You have been working for a company that has sponsored you an I-140 and subsequent I-485. The I-140 has been approved and you now have a pending I-485. The I-485 has been pending for less than 180 days. However, you have recently received a job offer for a more preferable position but you do not want to redo your green card process, what can be done?
Although it is possible to maintain your immigration process, it is risky to leave your old job before the I-485 has been pending for 180 days. If your first employer decides to revoke the approved I-140 before the I-485 has been pending for 180 days, the petitions will not transfer to the new employer and the new employer will have to go through the immigration process from step 1. However, if this is the case, you will be able to retain the priority date of the previously approved I-140. Furthermore, there is an assumption that the immigration petitions were filed on good faith when you have worked for the employer for 180 days. It is possible for USCIS to investigate and even revoke an approved I-485 if they believe that the immigrate petitions were filed fraudulently.
Sample Case # 3
You have been working for a company that has sponsored you an I-140 and subsequent I-485. The I-140 has been approved and you now have a pending I-485. The same employer offers you a different position in the company as a promotional opportunity. How does a different job with the same employer affect your pending green card application?
A different position within the same company operates the same as if you were offered a new job by a different company. You will have to fulfill the requirements of having an approved I-140, the I-485 have to be pending for 180 days, and the new position will have to be the same or similar to the previous position. In this case, if the I-485 has been pending for 180 days or more and the new position is similar to the previous position, then you can transfer.
Sample Case # 4
You have been working for a company that has sponsored you an I-140 and subsequent I-485. The I-140 has been approved and you now have a pending I-485. You have a job offer in an entirely new field that you want to take but you don’t want to restart the green card process, what can be done?
In this case, you do not meet the AC 21 portability requirements because the new job is not the same or similar enough to the prior job. As such, the default rules of an employer- sponsored immigrant petition still apply. In order to keep the immigration process alive and move to a new job, the previous employer must still have a bona fide job offer for you during the immigration process and you must work for the previous employer for a reasonable amount of time after receiving your green card. Because the AC21 portability rules allow for transfer of employers after 180 days, immigration practitioners have used the 180-day mark as a period of time that is reasonable for you to work for the employer after receiving your green card. In summary, you can change employers but you must return to the same employer that sponsored your petition, and work for them for 180 days before changing jobs
Receiving new job opportunities is exciting and can lead to the next chapter of your life. However, it is important to understand whether there are unknown immigration consequences related to those job opportunities. You have a multitude of options when you want to change employers while an employer sponsored immigrant petition is pending. Please consult with an experienced immigration attorney to understand and choose the best path to take. At Zhang and Associates, we have helped thousands of our clients through these times. To contact us, please email us at info@hooyou.com or call us at (713) 771-8433.
For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:
Updated 05/08/2017