New York Lawyer's Legal Updates

Change Of Employer While I-140 Is Pending

Author: New York Employment Immigration attorney Alena Shautsova

Can I change my employer while the process for permanent residency or a green card is not finalized?

The short answer is yes, but it depends on certain circumstances.

An employment based immigration may take years, and even decades. The wait time is determined by the classification of the employee is using to immigrate to the US, and by the employee’s nationality. Also, the process may be extremely complicated with numerous appeals and motions filed, and all these determines the wait time.

To start the process of the employment based Immigration , an employer has to file I 140 form for an employee. Now, an employee may or may not be currently employed for the employer under a different qualification(such as an L1 or H1B) when the process is being started. Some employment positions require that an employer complies with the Department of Labor Regulations first, and file for Labor Certification and go through PERM process.

Now, let’s assume that PERM was successful, and your employer finally filed I 140 form for you. However, due to your country’s quotas’ delays, you cannot file I 485 or an adjustment of status application right now. Can you change your employer?

Not really, the petition will still be valid only if the new employer is a successor in interest for the old one. First, however, remember that in this situation you have to make sure that your status that your hold will continue and you will not fall out of status which will make you ineligible for adjustment of status.

Now, to be able to change your employer and continue the employment immigration process, you need to make sure that if you are leaving the sponsoring employer, it will not withdraw the I 140, because the withdrawal “kills” the petition and its priority date. The real question in a situation like this will be the validity of the underlying Labor Certification approval (“LC”), and the employee will be able to use the approved LC if an employer files an emended or duplicate I 140, when an employer has to file a new petition or successor in interest petition, the same employer is filing a new petition due to denial, when the amended petition requests a new classification, or where the I 140 was lost.

Otherwise, a new employer must start the process from scratch.

Now, if the adjustment of status application is pending for at least 180 days, than you may have a chance of preserving the earlier filed I 140 if it was not withdrawn before the 180 days or revoked/denied by USCIS at any time (usually due to fraud).

A new job, however, has to be in the same or similar occupational classification. To determine if it is so, one has to turn to SOC system. By the way, 180 days start running here from the time the employment is terminated, and not from the time I 140 was pending.

The approval of I 140 is a must prior to granting portability. What will happen, is that a USCIS officer will have to see if the I 140 was approvable within the 180 days. If yes, then they will proceed with the adjudication of I 485, if not, then they will issue a denial.

An employee confirms that the occupation is the same or similar by presenting documents from the ne employer.

18 July 2016
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