To qualify, you need to show that the job change reflects your normal career progression. But without a PERM or I-140, you will have to leave the United States at the end of the six-year validity period. need to demonstrate that their work in the U.S. will be in the national interest. You must be able to prove that you are able to develop your enterprise. Yes, you may change employers after your NIW has been approved. An employee beneficiary of an approved I-140 petition can retain this priority date for any subsequent filing in the event he or she changes employers after approval of the I-140 petition. While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. What is the EB-2 NIW green card processing time? Ultimately, it would be best if you didnt make any job changes during this crucial period without the advice of an attorney. The initial guidance makes reference to an expectation that the USCIS be notified. The DOL uses whats known as the Standard Occupational Classification to properly group and classify jobs. The NIW allows you to self-petition for your EB-2 green card, meaning your status is not tied to a particular job or employer, unlike employer-sponsored categories. The employer does not control the I-485 application, since this is filed directly by the foreign national. You must establish by a preponderance of the evidence that the relevant positions are in similar occupational classifications. Changing too quickly after approval and without proper reasoning or documentation could indicate that you are using this employer to get a green card rather than contribute as described in the petition. If AOS is selected, we have an option for "concurrent filing" of the I-140 and I-485. We find that, in most cases, it is the safest approach. Withdrawal/Revocation of I-140 If an I-140 is withdrawn or revoked before 180 days, then the I-140 petition is no longer valid and cannot be ported to a new employer, even after 180 days under the AC-21 rule. All Rights Reserved, In a consultation, an attorney can provide answers to your questions, or you may engage our firm for your immigration process. A green card is not guaranteed if you change jobs while your I-140 is pending. Therefore, there is no legal requirement to work for the sponsor at the time of filing the labor certification (LC), or even while the I-140 or I-485 is pending. How Long Do I Need to Stay With My Employer After Green Card Approval? An approved I-140 is usually employer- and job-specific. The priority date may be retained even when the prior employer withdraws the I-140, or the prior employer goes out of business. Who Benefits from the Amendment to INA Section 245(i)? The new position must match the original job description and SOC code listed in the I-140. Suppose USCIS approves your I-485 in less than 180 days and you are interested in changing jobs after green card approval. The new job must be in the same or similar occupational field as the previous job in the original I-140 petition, and the employer must have the actual intent to employ the beneficiary after their adjustment of status is completed. Since 2005, she has partnered with HR professionals to help their businesses secure work authorization for their valued foreign national employees, including F-1 students. This priority date determines where the employee stands in line for their green card. In addition, if youve taken a new position thats not the same job as your last, the change may raise red flags with USCIS. This will still make your adjustment application valid. The employer can always withdraw or request to revoke the I-140 petition. Be sure to indicate on the petition that you want to retain your priority date. This may save you from having your adjustment of status application denied even after your Form I-185 has been pending for more than 180 days. For example, if you were an IT professional, the new job must be in the same occupational classification as your old job. First, you must notify the USCIS if you have changed your employer. Get in touch with one of VisaNation Law Group's immigration attorneys today. In all green card cases (with the exception of the EB-1A), the first step is to acquire a PERM Labor Certification, which involves having your employer go through a recruiting process to make sure that no qualified U.S. workers are available for your position. I have a pending EB-2 PERM filed by my employer. At that point, many employers either will not respond or will withdraw the I-140 petition, risking the entire case. Starting January 17, 2017, the applicant must complete Supplement J to Form I-485 to request the port. A .gov website belongs to an official government organization in the United States. This is particularly true after July 16, 2007, since it is no longer possible to file labor certification substitution cases. Copyright 2019, MURTHY LAW FIRM. I changed careers after getting my green card through NIW. Not if it is pending. The waiting time for certain countries demonstrates this difference. Yes, that does, which means you may qualify for an EB-2 visa. Your use of this website and our software platform are subject to VisaNation Inc.'s privacy policy and terms of use. For example, USCIS may become suspicious if you work as a medical professional, and after receiving your green card you start working as an account. Your new position should be in the same or similar occupational classification. However, he soon loses interest in the job and instead desires to become an electrical engineer instead. 47-[2]022: The third digit, 2 represents the minor group, which includes all construction trade workers. Although the NIW requirements, as in the. Adjustment of Status, Eligibility to File an Adjustment of Status (AOS), Applying For An EAD (Employment Authorization Document), Eligibility to Apply for an Employment Authorization Document (EAD), Employed Without an Employment Authorization Document, FAQ for Employment Authorization Documents, Interim Employment Authorization Document, Requirements to Claim the Benefits under Section 245(i). Meeting the above requirements does not mean you have automatically ported from one green card to another. In addition, the employer must run another recruiting period. Changing jobs without informing USCIS could jeopardize your application. Disclaimer: Website, software platform and administrative support are provided by VisaNation Inc., a Delaware corporation. 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. 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. However, there is no specific rule for matching any particular order of digits in two SOC codes. The new job must be associated with the previous position, and its duties must be similar. There have been many qualified petitioners with outstanding achievements whose petitions were rejected because of poor presentation. In fact, many successful NIW applicants apply without a Ph.D. VisaNation Law Group has helped many of their clients process and acquire their NIW green cards without a Ph.D. The process will move smoothly from your current employer to the new one. Many employers do not withdraw I-140s upon employment termination. If this is the route that you wish to take, it is highly recommended that you work very closely alongside an immigration attorney to make sure that your case is waterproof. As discussed above, if the petitioning employer withdraws the I-140 within fewer than 180 days of approval, that revoked I-140 petition cannot be the basis to extend H1B status beyond the standard 6-year maximum timeframe that is permitted under the law. Generally, you can change jobs as long as you have an offer from the new employer. Moving from one employer to another in the best of circumstances can be stressful. However, in certain cases, it is possible to change jobs after your I-140 has been approved. 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. Answer 2. 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. Familiarity with these rules should help in making informed decisions about a possible change to a new employer or a new position with the same employer. If any of those things change, then the PERM can no longer do its job to protect the jobs of U.S. workers. Immigration Services Throughout the United States, Document Review Skype Consultation (One Hour), At Herman Legal Group, Your Future Matters Most, Copyright 2017 - 2022|Herman Legal Group, LLC. USCIS officers may compare factors including, but not limited to: USCIS officers will consider the totality of the circumstances to determine if the two jobs are the same or similar for porting purposes and make our determination based upon a preponderance of the evidence. The value of such notifications has been confirmed over time. Do I need to have a Ph.D. to qualify for NIW? How do I prove I am able to develop my enterprise or endeavor? No. 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. AC21 speaks in terms of the I-485 pending for 180-days or more. Trackitt: Immigration on the App Store. Emily has been quoted in Bloomberg Law, U.S. News & World Report, Inside Higher Ed, and The Times of India on various hot topics in immigration. If your new job is within the same or similar occupational classification as your old one, you may be able to transfer your green card to it. The SOC code for a boilermaker is 47-2010, which contains the same first four numbers of the stonemasons SOC code (47-20). This is more common and advantageous for applicants pursuing the EB-3 green card, as they can leverage the provision to upgrade to an EB-2 green card. people with advanced degrees or exceptional ability in their field) to bypass the PERM Labor Certification requirement and self-petition for a green card without an employer. The fact that you have a pending PERM application doesnt stop you from pursuing an NIW petition. You should notify USCIS of your intention to change jobs under the AC-21 Act as soon as possible. Changing jobs after a green card approval throws a wrench into an already complicated process. If one is laid off, it is best to get input from an experienced immigration attorney to address status maintenance and the preservation of any possible benefits from the prior green card filing. Evidence for this could be found in your educational background, past experience, or current progress in your enterprise. Second, they will evaluate the submitted evidence together to make their final decision based on the total requirements for NIW. An I-140 typically can be used only to apply for lawful permanent residency (i.e. Our attorneys will be able to advise you on what steps you need to take and ensure that your application is processed as quickly as possible. 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. The duties listed for the original job offer should be compared with the job duties of the new position to determine within which category they fall. Hi, I got my I-140 (EB-2) approved last week, and my priority date is Feb 2022. Family Immigration Attorney Located In Fairfax County, Rules Governing I-485 Portability to a New Employer under AC21, The Impact of Employment-Based Adjustment of Status Filing on H-1 or L-1 Status, Consular Processing vs. In any case, you should consult a green card attorney in these types of dilemmas. AC21 does not contain any limitations regarding multiple job changes. Therefore, before making a career change, consult a green card attorney. 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. Remember that the NIW has two major eligibility routes: having an advanced degree or having exceptional ability in your field. So, what are you waiting for? In many situations, therefore, this does not present a significant problem. However, by following the steps of green card portability, you will not have to start the process from scratch. Because of this, if youre changing jobs and employers before or after I-140 approval, you need a new PERM. The length of the extension will depend on the status of the I-140 petition. Job change after green card approval might happen with two groups of people: If you are staying with your employer and your job title and description are only changing slightly, you might be able to file an I-140 amendment. The fee is $2,500. However, the old and new job offers must both be in the same or similar occupational classification for the AC21 job portability to apply. In our experience, yes. Because of these factors, changing jobs after your NIW is approved is only possible if you stay in your original field of expertise. Be sure to consult with your attorney to see if waiting for a certain period after changing jobs would be advisable. It also instructs officers to consider additional resources such as DOLs Bureau of Labor Statistics Occupational Outlook Handbook as well as the DOLs Bureau of Labor Statistics Occupational Employment Statistics Database as part of the analysis. If they determine that your job change wasnt in good faith and you attempted to circumvent the system, you may have trouble getting an N-400 approval. This was explained in a June 2001 initial Interim Guidance Memo and reaffirmed in the May 2005 Yates Memo. However, that does not mean the new job must be in either of those career paths. An approved I-140 petition remains valid, once the I-485 application has been pending for 180 days, even if the employer requests the revocation of the I-140 petition. Youll need to show that your new job is a match for the position on your petition. Therefore, they would not be able to change jobs outside their field after NIW approval. Occupational Classification is determined by the Department of Labor. However, if you are a medical professional, USCIS may start to suspect you are changing jobs without consulting an attorney first. USCIS aims to determine in all cases whether a new position is in the same or similar occupational classification as the original job offer. However, jobs that are related to technology development and scientific research are typically some of the most beneficial to the U.S. economy. Your Form I-485 Application to Register Permanent Residence or Adjust Status must have been pending for at least 180 days, and your Form I-140, Immigrant Petition for Alien Workers must have been approved or filed together with the I-485. How long it takes to get i-140 approved? Ordinarily, the I-140 petitioning employer may send a withdrawal notice to the U.S. The portability of your green card may not always be possible. You must be able to convince the USCIS that the United States would stand to benefit from waiving the PERM requirement as opposed to enforcing it. port your petition from one green card preference level to a higher one, American Competitiveness in the Twenty-First Century Act of 2000, H-1B Lottery Rule Changes Could See Reversal, March 2023 Visa Bulletin: Analysis & Predictions. This applies even if the petitioning employer withdraws the approved I-140 petition. There are some key concerns in this situation. USCIS takes into consideration factors such as normal raises that occur over time to account for inflation or promotion, the fact that the two positions might be located in different geographic locations or economic sectors, possible corporate mergers that could affect compensation structures, as well as moving from a for-profit to a non-profit employer (or moving from a non-profit to a for-profit employer). Processing times vary as USCIS evaluates each application on a case-by-case basis. Even if the I-485 has been pending 180 days, it is quite risky if the I-140 has not been approved. The priority date is the date the PERM labor certification is filed, or for schedule A workers, the date the I-140 petition is filed. For example, the SOC code for a stonemason is 47-2022. Those who wish to go around the PERM requirement need to demonstrate that their work in the U.S. will be in the national interest. It was a future job offer. Q. And how do I continue to work lawfully while the petition is pending? Additionally, the wage is relevant to demonstrating that the individual will be self-supporting and will not become a public charge.. Will my change of career affect my naturalization application? AC21 does not require that one leave the sponsoring employer. To get in touch with one of VisaNation Law Groups lawyers, you can. Microsoft MMLk51. If you have a pending Form I-485, Application to Register Permanent Residence or Adjust Status based on employment, you may be able to change the job or employer on which your Form I-140, Immigrant Petition for Alien Worker, is based as long as the new job offer is in the same or a similar occupational classification as the job offer for which the Form I-140 petition was filed. 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). Yes, USCIS began premium processing for EB-2 National Interest Waiver (NIW) I-140 petitions received on or before August 1, 2021. However, many wonder how long they must stay with their employer without facing penalties or jeopardizing their green card application process. In reviewing two positions within the same broad occupational classification, USCIS will consider factors such as the similarity of the duties, experience, or areas of study associated with each position. Because no I-485 application has been filed, there is no requirement that the new employers job offer be similar to the job that the employee was previously sponsored for. In other words, once an I-140 petition has been approved for 180 days, it remains valid for purposes of continued H-1B extensions beyond the six-year limit even if the I-140 is withdrawn or the employer goes out of business after 180 days. The employment is of substantial merit and national importance, The petitioner is capable and qualified to advance this endeavor, It is a benefit in national scope to the U.S. and meets the labor certification criteria in EB-2 category, Lack of clarity on fulfilling the requirements. Be aware, however, that this system can sometimes be outdated, and IT jobs often lack up-to-date definitions. 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. Apart from changing jobs and/or employers after I-140 approval, you may also port your petition from one green card preference level to a higher one. 703.348.8455, 6066 Leesburg Pike, Ste. If you are in the process of obtaining an NIW for your EB-2 green card, then changing your job may require that you file a new I-140 as well as a new application for your NIW. This can be done electronically using Form AR-11 . But you will get only three years if the I-140 is approved. However, if you are changing jobs after National Interest Waiver approval, then you may encounter difficulties with proving that your new occupation is in the national interest. If you can afford it, you can file as many petitions as you want. It is important to note that the duties generally govern, and not specific technologies, in most cases. Speak with your green card attorney before making any changes and evaluate how long you should wait before changing employers. USCIS uses a two-part evaluation method to determine whether the evidence submitted by an NIW petitioner establishes that the proposed endeavor will be national in scope and whether the national interest will be adversely affected if a Labor Certification were required. First, USCIS will evaluate the submitted evidence to decide which evidence meets the required regulatory criteria. No. We note that, at The Anwari Law Firm, we have seen many instances of significant changes in wages that still meet the AC21 requirements. 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.. Do I need to inform USCIS if I change jobs? When referring to the SOC system, USCIS will analyze the SOC codes of the two jobs it is comparing. 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. 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. A change in employer or job may directly affect a foreign national employees ability to use the approved I-140 petition. Occupations are generally categorized based on the type of work performed. 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