However, the job description for a boilermaker is significantly different from that of stonemason: Construct, assemble, maintain, and repair stationary steam boilers and boiler house auxiliaries. As long as an approved I-140 remains valid, the employee may use it with any (including a new) employer, as a basis to request an extension of H1B status beyond the standard 6-year maximum. Many who have filed their I-485 applications have or will experience years of waiting time for visa number availability due to retrogression. For those who have obtained an approved I-140 petition through employer-sponsorship, job changes can still be accomplished even if an I-485 application has not yet been filed due to lack of available immigrant visas or green cards based on the employee's country of birth, priority date, and preference category. From the experience of several of their clients, choosing the correct evidence to convince the USCIS that your endeavor is in the national interest of the U.S. is extremely difficult without the help of a qualified attorney. There's got to be an easier way of dealing with this, because I'm sure many people have changed their employer after their i-140 approval. Ordinarily, the I-140 petitioning employer may send a withdrawal notice to the U.S. What is the three-pronged test set by USCIS? But without a PERM or I-140, you will have to leave the United States at the end of the six-year validity period. After 180 days, you can change your employer or job. If, however, the USCIS revoked the I-140 petition due to fraud, misrepresentation, or a material error in the approval, the USCIS will not honor the request for priority date retention. It can be attempted; however, one of the major concerns in a layoff situation is the I-140. There have been USCIS memos clarifying many details, as well as many cases through which we have gained valuable insight into the USCISs interpretations and applications of AC21. As long as you follow certain rules, you can switch jobs while your I-140 is pending. Your personal information is protected by our Privacy Policy. In the example in the Occupational Classifications section above, the 47 encompasses all construction and extraction occupations, which is a broad category and would not determine whether two jobs are similar. Coronavirus (COVID-19): Green Card Tracker (PERM Tracker) Show filters. Is it the receipt date or the notice date that governs the counting of the 180-day period under AC21? It may be best to discuss potential issues that could be created by frequent or repeated job changes in the AC21 context. You could potentially save yourself years of waiting time. Be aware, however, that this system can sometimes be outdated, and IT jobs often lack up-to-date definitions. Looking for U.S. government information and services? Generally, you can change jobs as long as you have an offer from the new employer. How Do I Prevent Discrimination as an Employer? #2 I-140 Approved Depending on the circumstances, the USCIS may favor the new job over the former one. And even if you change jobs, your underlying labor certification remains valid as long as there is no fraud and misrepresentation in your case. In fact, the I-140 petition generally cannot even be used for a new position with the same employer that filed the I-140. Q. I am afraid that, if I change my job, my employer will try to harm my green card case. 1. The first stage is the PERM filing with the U.S. Department of Labor (DOL), when the employer must establish that no qualified U.S. worker is available for the position. If the I-140 petition has been approved, and the I-485 has been pending for 180 days, the employer can still request to revoke the I-140 petition approval. However, if you are a medical professional, USCIS may start to suspect you are changing jobs without consulting an attorney first. Even if your I-140 is approved, changing jobs before you receive your visa can lead to problems. What are the risks? I-140, Immigrant Petition for Alien Workers. This means the I-140 and the I-485 may be filed at the same time, or the I-140 may be filed first; the I-485 may be filed while the I-140 is still pending. Seesection 204(j) of the Immigration and Nationality Act (INA), which was enacted from section 106(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), for more information. This field is for validation purposes and should be left unchanged. If you change jobs or receive a promotion, USCIS will determine whether you remain eligible for a Green Card on a case-by-case basis and based upon the totality of the circumstances. It is recommended that you engage the service of an experienced immigration lawyer to improve your chances of petition approval. This is why you must be sure to do your due diligence and let your case strike the right balance. Virtually identical jobs may substantially vary in terms of pay. As long as your new job is identical or very similar to the job that you used for your NIW, you should be able to transfer with the help of an immigration attorney. The new job will start in Aug 2023 if I accept the offer. Lay walks, curbstones, or special types of masonry for vats, tanks, and floors. The job description for a stonemason is: Build stone structures, such as piers, walls, and abutments. As such, there are no specific legal requirements as to what, if anything, has to be filed when AC21 is used. If an I-140 petition is withdrawn after 180 days, the employee can still utilize the AC-21 rule. A new job must also be in the same occupational classification as the job petitioned for. If the H-1B transfer petition seeks to extend the employees H-1B status beyond the six-year limit, the I-140 approval must not be withdrawn, or if it has been withdrawn, the withdrawal must have occurred more than 180 days after the I-140 was approved. We also offer online consultations on Zoom, Skype, Facetime, and WhatsApp. For you to change the offer of employment or employer, your Form I-485 must have been pending with USCIS for 180 days or more. Even if the I-485 has been pending 180 days, it is quite risky if the I-140 has not been approved. USCIS officers will review the I-140 and compare the two job offers. While it is not impossible, there are few people who would be able to convince the USCIS of their ability to develop enterprises in different fields that will have a substantial positive impact on the U.S. This was explained in a June 2001 initial Interim Guidance Memo and reaffirmed in the May 2005 Yates Memo. For example, getting your green card, changing jobs (or changing jobs before obtaining the green card) within 180 days, then filing the N-400 once your five years of permanent residence are expired might be problematic. However, the timing of the withdrawal will determine whether USCIS will revoke the I-140 or not. In that situation, if the foreign national has not provided information about the new job, then the USCIS will issue a Notice of Intent to Deny (NOID). By contrast, switching jobs after youve been granted your green card, you dont need to notify US citizenship and immigration services. The portability of your green card may not always be possible. However, in certain cases, it is possible to change jobs after your I-140 has been approved. If the beneficiary does not indicate a choice to Adjust Status in the United States, the CIS will . USCIS officers are instructed to consider additional factors, such as: If you are going from one job as a veterinarian to another job as a veterinarian, you will likely not have to worry about whether the occupational classification will remain the same. FYI Once I-140 is approved from current employer wait till 6 months after approval date and then you can plan to move to different company or stay if you want in your current company.After 6 months even if the company revokes it there is no effect to you and you can use that approval to extend your h1b visa in future. The Herman Legal Group has over 25 years of experience working with the U.S. For example, the SOC code for a stonemason is 47-2022. It requires your employer to file a new PERM Labor Certification and Form I-140 petition. This is often possible even after the expiration of the individuals 6-year H1B period, since, under a USCIS opinion letter, the law permits extensions beyond the 6-year limitation with employer B based on a qualifying green card case previously filed with employer A.. Changing jobs before the visa is issued can lead to legal issues if job duties dont match. If thats you, keep reading to find out more. You may also file Form I-131 together with your I-485 to get advance parole, which serves as your valid travel document while the I-485 is pending. While the twenty-first-century act allows you to work in the U.S. permanently, the process can be complicated. Learn How to Change Jobs After NIW Approval. The information contained on this website is for general information purposes only and is not a substitute for legal advice and does not create an attorney-client relationship. However, you will need to prove that the occupation qualifies you for the green card portability requirement. Processing times vary as USCIS evaluates each application on a case-by-case basis. USCIS and DOL treat each petition individually, which means one can submit multiple petitions under various categories simultaneously and the decision on one petition will not affect the other. The first thing is to determine if your job is in the national interest. The process will move smoothly from your current employer to the new one. Thus, filing a case as a future job offer, without working for the sponsor, then using AC21 to move to an alternative position, can raise questions of intent and potential fraud or misrepresentation. What is the EB-2 NIW green card processing time? This is particularly true after July 16, 2007, since it is no longer possible to file labor certification substitution cases. The term port or porting means to change the offer of employment from one job or employer to another job or employer in a way that allows an applicant to remain eligible for a Green Card without having a new Form I-140, Immigrant Petition for Alien Worker filed, for the applicant. Q. I lost my job before the I-485 had been pending 180 days. What happens after my I-140 is approved? Job change after I-140 approval. It also stands to reason that few physicians would be able to claim expertise in more than one specialized area of medicine. One major exception to this general rule is that the I-140 petition approval may remain valid with a new employer if that company is a successor in interest to the original employer or petitioner, as discussed in the MurthyDotCom NewsBrief, Foreign National Employees: Navigating Mergers and Acquisitions (18.Nov.2013). However, many wonder how long they must stay with their employer without facing penalties or jeopardizing their green card application process. You may also file. Because of these factors, changing jobs after your NIW is approved is only possible if you stay in your original field of expertise. The new petition must reflect the latest achievements that now qualify you for the higher preference category. An advanced degree simply means anything higher than a bachelors degree and does not mean you need a Ph.D. The AC21 determination is governed by duties of the job rather than the job title, as job titles often differ between companies, even for very similar positions. You must also keep in mind that the period starts right from the receipt date of I-485. If you are in the process of obtaining an NIW for your. The best proof that a job offer is valid, however, is working for the sponsor. However, once 180 days have passed following approval of the I-140 petition, the USCIS will not revoke the I-140 petition solely based on the petitioners request for the withdrawal of the petition. a "green card") with the petitioning employer. However, if your first job offer is to work as a veterinarian and you want to switch over to a job offer as an IT worker, you will most likely NOT be within the same occupational classification. However, if USCIS revokes the petition, you will no longer be allowed to leverage it to request an H-1B status extension beyond the standard maximum of six years. In fact, it is advantageous to do so because if one petition is denied, chances are the other one will be approved. 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