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Q: CHANGING JOBS WHILE UNDER A GREEN CARD PROCESS ( Answered 5 out of 5 stars,   5 Comments )
Question  
Subject: CHANGING JOBS WHILE UNDER A GREEN CARD PROCESS
Category: Reference, Education and News > General Reference
Asked by: bagroso-ga
List Price: $20.00
Posted: 10 Aug 2005 19:27 PDT
Expires: 09 Sep 2005 19:27 PDT
Question ID: 554281
I am a H1-B holder currently under a green card process. I already
received the Labor certification approval (Form ETA 9089) and the
I-140 petition (green card petition) is already filed but not approved as of yet.

Another company offered me a job, what happens if I change jobs right
now? In the middle of the process?(for the exactly same job
description of the one applied in my labor cert)
Do I need to RESTART all the green card process all over again? from the beginning?
OR
can I move to another company and leave and wait for the result of the
current application?
Answer  
Subject: Re: CHANGING JOBS WHILE UNDER A GREEN CARD PROCESS
Answered By: hummer-ga on 11 Aug 2005 04:19 PDT
Rated:5 out of 5 stars
 
Hi bagroso,

Unfortunately, if your I-140 is still pending, then the application
will not remain valid if you change employers. The I-140 must be
approved and your I-485 must be unadjudicated for at least 180 days
before your I-140 would remain valid if you change employment.

"The purpose of this memorandum is to provide field offices with
guidance on processing Form I-485, Application to Register Permanent
Residence or Adjust Status, when the beneficiary of an approved Form
I-140, Petition for Immigrant Worker, is eligible to change employers
under 106(c) of AC21."
"If the Form I-140 (?immigrant petition?) has been approved and the
Form I-485 (?adjustment application?) has been filed and remained
unadjudicated for 180 days or more (as measured from the Form I-485
receipt date), the approved Form I-140 will remain valid even if the
alien changes jobs or employers as long as the new offer of employment
is in the same or similar occupation.1 If the Form I-485 has been
pending for less than 180 days, then the approved Form I-140 shall not
remain valid with respect to a new offer of employment."
http://uscis.gov/graphics/lawsregs/handbook/I140_AC21_8403.pdf

New Interpretation On Job Flexibility During Adjustment Of Status
by Cyrus D. Mehta
"Section 106(c) of the American Competitiveness in the 21st Century
Act (AC21) introduced a very novel concept. It gave some degree of
mobility to the noncitizen employee who was being sponsored for
permanent residence by a US employer when an adjustment of status
application (Form I-485) took 180 days or more to process. When an
adjustment application is pending for more than 180 days, Section
106(c) allows such a noncitizen employee to either change jobs within
the same sponsoring entity or to move to a new employer who offers a
same or similar job."
"...Section 106(c) now keeps intact the validity of this labor
certification if the noncitizen changes jobs as long as the "new job
is in the same or similar occupational classification as the job for
which the petition is filed" and Form I-485 is pending for 180 days or
more."
http://www.ilw.com/lawyers/articles/2003,0905-mehta.shtm

I'm sorry for the bad news. If you have any questions, please post a
clarification request and wait for me to respond before closing/rating
my answer.

Thank you,
hummer

Google Search Terms Used:

uscis I-140 petition approved  I-485  new job 
Section 106(c) uscis
labor certification approved i-140 pending change jobs
green card applications labor certificate  h1-b

Request for Answer Clarification by bagroso-ga on 11 Aug 2005 07:04 PDT
Hummer,

Thanks for your attention and your answer. I have some clarifications
to ask. Please be as didactic as possible.
- As far as I understand I will need to wait for the APPROVAL of my
I-140. Then after the approval I would receive this  I-485 AND i will
need to wait 180 days after receive the I-485 in order to change jobs?

thank you very much.

Clarification of Answer by hummer-ga on 11 Aug 2005 08:40 PDT
Dear bagroso,

- As far as I understand I will need to wait for the APPROVAL of my I-140. 

Yes, the I-140 must be approved...

- Then after the approval I would receive this  I-485 AND i will need
to wait 180 days after receive the I-485 in order to change jobs?

The I-485 is the Application To Register Permanent Residence (it is
the last step in obtaining an employment "Green Card") and is
something you will send in after your I-140 is approved. After you
submit your I-485 Application, USCIS will send you an official *dated*
filing receipt. It is the date on that receipt that determines the
beginning of the 180 days.

For example:

1. Your I-140 is approved on August 25, 2005.
1. You mail your Form I-485 application on Sept 1, 2005.
2. USCIS stamps it received on Sept 15, 2005 and sends you a filing receipt.
3. Your I-485 is now pending.
4. Sept 15, 2005 to March 14, 2006 = 180 day    
5. You can change jobs on March 14 2006 or thereafter even though your
I-485 is still pending. The 180 days begins when your application is
received by USCIS, you do not have to wait for its approval.

Application Procedures:
Becoming a Permanent Resident While in the United States
http://uscis.gov/graphics/howdoi/LPRApplication.htm

I hope that is clear, but please let me know if you need further
clarification. I'll be here all day and will do my best to help you.

Regards,
hummer
bagroso-ga rated this answer:5 out of 5 stars
very good answer. thanks so much, very helpful

Comments  
Subject: Re: CHANGING JOBS WHILE UNDER A GREEN CARD PROCESS
From: dprk007-ga on 10 Aug 2005 19:44 PDT
 
I am curious why you wish to jeopardise your Green Card process just
for a change of job? And your current employer who have sponsored you
will not be too happy that you wish to jump ship when they have done
you such a great favour.

DPRK007
Subject: Re: CHANGING JOBS WHILE UNDER A GREEN CARD PROCESS
From: hummer-ga on 11 Aug 2005 18:24 PDT
 
You're welcome, bagroso, and thank you too. I'm glad to hear that I
was able to help - good luck with your application! Sincerely, hummer
Subject: Re: CHANGING JOBS WHILE UNDER A GREEN CARD PROCESS
From: hummer-ga on 31 Aug 2005 07:09 PDT
 
Hi bagroso,

I noticed that you've closed your subsequent question. I did spend
some time on it and rather than have my research go to waste, I
thought I would post it here.

1- changing employee now will result in CANCELLATION of what I
received so far, basically I would need to re-start the PERM process
all over again?

It would not be a good idea to change employers before your I-140 is
approved. It is important to USCIS that you have an intention to work
for the employer who has filed the petition. Although it is possible
to change employers after the I-140 is approved, it would not remain
valid if you changed employers. By far, the best thing to do would be
to file your I-485 now along with a copy of the Service Center's I-797
receipt (you can do that before the I-140 is approved), wait for the
I-140 approval, and wait 180 days from the I-485 receipt date before
changing employers. In this way, you'll have your new employer
substituted into your pending I-485 and no new application for labor
certification or a new I-140 will be required.

"If the Form I-140 (?immigrant petition?) has been approved and the
Form I-485 (?adjustment application?) has been filed and remained
unadjudicated for 180 days or more (as measured from the Form I-485
receipt date), the approved Form I-140 will remain valid even if the
alien changes jobs or employers as long as the new offer of employment
is in the same or similar occupation.1 If the Form I-485 has been
pending for less erhen the approved Form I-140 shall not
remain valid with respect to a new offer of employment."
http://uscis.gov/graphics/lawsregs/handbook/I140_AC21_8403.pdf

 To use AC21 portability, should I wait beyond 180 days for I-140 approval?
"Attorney Murthy : A person should wait a minimum of 180 days for the
I-485 to be pending, and the I-140 should have been approved before
being able to enjoy AC21 portability. The rule is not 180 days after
I-140 approval, but merely for the I-140 to be approved and the I-485
to be pending for at least 180 days.
Attorney Murthy : It is not safe to leave the sponsoring employer
without the I-140 approval notice. Also, it is not wise to work for
one?s self or as an independent contractor on the EAD since, if the
USCIS issues an RFE on the I-485, it is best to show proof of "same or
similar" job with an employer, as required under AC21."
http://www.murthy.com/chatlogs/chat1124_P.html 

2- I understand I need to switch the H1-B sponsor WHILE still employed
from the current sposnor?

Yes, you are supposed to maintain your status with the old employer.

"2b. What if I have a gap in H-1B employment? Often, when applying for
a "change of employer" H-1B, CIS will request copies of the
individuals most recent pay statements with the previous employer to
show that the individual maintained his/her status. Officially,
workers are out of status immediately upon termination or resignation.
While no official grace period exists, H-1B change of employer
petitions are commonly approved when filed within a reasonable period
time (2-4 weeks) from the last date of employment. ILG strongly
recommends filing before leaving the previous position, if possible.
The oft-quoted "10 day rule" only applies to H-1B visa holders who
fulfilled their entire period of sponsorship, and are given 10 days to
leave the United States upon the expiration of their visas."
http://www.immigrationgroup.com/CM/Custom/TOCImmigrationFAQs.asp

Q10: Who is eligible to use the H1B "portability" provisions?
A10: The portability provisions allow a nonimmigrant alien previously
issued an H-1B visa or otherwise accorded H-1B status to begin working
for a new H-1B employer as soon as the new employer files an H-1B
petition for the alien. Previously, aliens in this situation had to
await INS approval before commencing the new H-1B employment. These
provisions apply to H-1B petitions filed "before, on, or after" the
date of enactment, so all aliens who meet this definition can begin
using the portability provisions.
http://uscis.gov/graphics/publicaffairs/questsans/H1BChang.htm

D. H-1B Portability Rules. A foreign national previously granted H-1B
status has the right to commence new employment upon the filing of a
new H-1B Petition rather than having to await its approval. The
underlying rationale here is that once a foreign national has been
granted H-1B benefits, the likelihood of subsequent H-1B approvals is
so great as to obviate the need to postpone the commencement of the
new employment owing to CIS processing delays. The Memorandum
clarifies the following points:
    * An H-1B foreign national can port to a new employer during the
time in which the initial employer?s extension remains pending.
    * An H-1B foreign national can port to successive employers as
long as all H-1B Petitions are timely and in good faith filed.
http://www.ingber-aronson.com/newsletter/2005-06-pf.htm

3-How can I renew my H1-B visa (expiring in jan 2006) Do I need to
wait for my new employee to start a new PERM proccess so I can go to
my country and renew my visa?

I think you should call your local immigration office and ask them,
giving them all of your particulars. There are too many little details
that could be overlooked here.

I currently have an H-1B change of status, extension or transfer
pending. Can I travel outside the USA?
This is generally not a good idea, although in some case it is
supposed to be possible. Don't expect BCBP officers to know this,
though!
"If you leave the US while such an application is pending - and this
includes even trips to Canada or Mexico - then you will probably find
that you need to wait outside the USA for the approval notice. In most
cases, you will also need a new H-1B visa from a consulate. Of course,
if you already have an H-1B visa that hasn't expired, you can use
that. This happens frequently in transfer cases, but rarely in
extension cases, and almost never in cases of change of status."
http://www.kkeane.com/h1b-faq.shtml 

I am an H-1B holder and I started working for my new employer under
the new portability provisions.  Can I leave the United States and
re-enter before my H-1B change of employer petition has been approved?
"Yes, but you will need a valid H-1B visa, a copy of the I-797 Filing
Receipt showing that the petition was filed and a letter from your new
employer stating that you are currently working for the new company,
in order to re-enter the United States."
http://www.greencardlawyers.com/workvisas/H-1Bvisas/H-1BHolderFAQs.html#Change%20of%20Employers%20and%20H-1B%20Portability

Wishing you well, bagroso,
hummer
Subject: Re: CHANGING JOBS WHILE UNDER A GREEN CARD PROCESS
From: lujimez-ga on 21 Sep 2005 10:44 PDT
 
DPRK007: Bagroso is very right in having this kind of questions. I am
myself in the same position. I am on H1B and at the beggining of the
labor certification process. I understand his question because I
receive a lot of job offers. It is confusing because they offer better
conditions. I recently moved to another state and now I dont like the
city where I live and I have to wait until the process is over to move
back.

We dont want to jeopardize the process and this is why we ask. Very
good answer hummer, it helped me too.

Besides you always should look for your best interests, companies can
lay you off without any consideration.
Subject: Re: CHANGING JOBS WHILE UNDER A GREEN CARD PROCESS
From: dprk007-ga on 24 Sep 2005 14:45 PDT
 
dear lujimez

I do not critize anyone for asking a question especially if it is in their
own interests. 

However I will take this oppurtunity of questioning both your
motivation and that of the questioner.
Neither the employer has to accept you  as an employee, nor more to
the point is the United States Government under any obligation to
grant you immigrant status( Green Card).

You say that you receive a lot of job offers and you do not like the
city you are living in. So do you really want me to feel sorry for
you?. With that type of attitude I as an employer would certainly not
be interested in employing you.
And if I were an immigration officier for the US government, I would
certainly not be very interested in having you come to the US As a
citizen.

You may of course be very competant at what you do. You also come
across as totally self centered and self interested.

Do not get me wrong. On many issues I am no fan of employers. On this
one however I am very much on the side of the employer. They are doing
you a great favour by facilitating your immigration process into the
United States and unless you ended up a vey bad offer then  I think
you should at leat stike it out till your immigration process has
completed.

And if you are getting so many potential offers how come you did not
take more time to secure the best position before starting with your
current employer. (I am assuming before you started the work related
to your immigration, you had the option of choosing potential
employees)

Finally you must have a very good skill set to get so many offers of
employment. I am assuming your skill set has nothing to do with IT
were many thousands of skilled IT US citizens cannot get jobs in this
field.


Regards

DPRK007

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