Job and Employer Change After I-140 Approval

The approval of a green card is an exciting time for most immigrants. However, many wonder how long they must stay with their employer after the I-140 is filed, without facing penalties or jeopardizing their green card. In this post, we’ll explore the process of a job change after green card approval, what to expect, and more detailed scenarios.

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Overview

USCIS grants green cards based on the premise that the employee permanently accepts the job or position. As many assume, permanent does not necessarily mean you’ll be at the job forever or until you retire. “Permanent” for the sake of immigration means “on an indefinite basis.” Moreover, the law suggests the employee intends to remain at the job indefinitely at the point of approval. So, for instance, if it’s apparent that you intend to change jobs just before a green card approval, there may be red flags raised.

Remember, I-140 approval does not automatically guarantee your green card. Changing your job before you physically receive your visa can incur problems if not handled correctly. However, if you are currently holding your green card in your hands, you can change jobs without notifying the USCIS.

Also, if you are applying for the EB-1A or EB-5 green cards, you do not need a job offer, so your green card is not contingent on the position you hold.

How to Change Jobs After I-140 Approval

Evaluate Your Situation

Weighing risks of changing jobs after I-140 approval depends on whether you are:

1. Changing your position with your current employer.
2. or changing employers altogether.

Changing Position Within the Same Employer

If you are staying with your employer and your job title and description are only changing slightly, you may be able to simply file an I-140 amendment. This will help to ensure USCIS has the most accurate records of your case.

Changing Employers Altogether

Changing employers requires careful consideration. Review the table to determine the risks associated with switching positions.

If you change jobs before hitting the 180-day I-485 pendency mark, your new employer must:

• Obtain a new PERM Labor Certification if your green card requires one.
• Run a new 60-day recruitment period.
• File a new I-140.

Notably, you lose the benefits of all the time and effort spent with your previous employer, as the PERM processing time is over a year.  Lastly, the employer will face the possibility of an audit.

Retain your Priority Date

Fortunately, by indicating on the new petition that you would like to retain the priority date of your original petition, you can avoid restarting the priority date, saving yourself years of additional waiting. Ensure you discuss this with your employer.

Retaining your priority date is also the trick to “porting” your green card. If you gain eligibility for a higher preference green card while waiting for your priority date to be current, a new sponsoring employer can file a new petition and PERM. That way, you can still retain your priority date.

Changing Green Card Categories After I-140 Approval

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. 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.

Over the years, there has been a significant difference between the processing times of EB-2 and EB-3 green card categories. The waiting time for certain countries demonstrates this difference. While some applicants may not have a choice other than to wait, others may be able to use the portability rule to their advantage. Examples include those who, in the process of waiting, have:

• Received new job offers that meet the eligibility criteria for a higher preference green card category
• Have additional job experience that qualifies them for an EB-2
• Had an increase in job salary in relation to the increased complexity of their job duties

Suppose you have experienced any of the above scenarios. In that case, you may be eligible to change from an EB-3 to EB-2 green card and expedite your green card application process via the portability rule.

I-140 Portability: How to Port from EB-3 to EB-2

Meeting the above requirements does not mean you have automatically ported from one green card to another.

Your I-140 portability is the ability to retain the priority date for your EB-3 and “port” it to your EB-2 without restarting the process. However, it functions as petitioning for a brand-new green card in all other aspects. It requires your employer to file a new PERM Labor Certification and Form I-140 petition. The new petition must reflect the latest achievements that now qualify you for the higher preference category. Be sure to indicate on the petition that you want to retain your priority date.

Learn How to Change Jobs After NIW Approval.

Can I Use the Approved I-140 to File an H-1B with a New Employer?

Yes, you may use the approved I-140 petition to request an H-1B extension and/or change of employer as long as the I-140 remains valid. This may grant you an extension beyond the maximum six-year period of stay. 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.

H-1B Extension After I-140 Approval

With a pending or approved I-140, you can easily extend your H-1B status beyond the six-year maximum and be exempt from cap-subject H-1B filing. The length of the extension will depend on the status of the I-140 petition.

If USCIS approves the I-140, you can request to extend your H-1B status for up to three years. However, if the I-140 is still pending, you can only request a one-year H-1B extension, provided your PERM has been filed for at least 365 days. But without a PERM or I-140, you will have to leave the United States at the end of the six-year validity period.

Another option is to upgrade your pending I-140 petition with premium processing if your six-year stay is about to expire and you don’t want to leave the U.S. With that, you will receive a decision on your petition within 15 business days.

However, if the green card category you are pursuing does not have the option of premium processing (such as the EB-1C), H-1B time recapturing, according to S. 31.3 (g)(9) and (14), is another option you can leverage. H-1B time recapture rules allow you to extend your H-1B beyond the six-year limit by documenting time spent outside the U.S., even if your green card is not yet approved. You must present proof, such as boarding passes and hotel reservations, as supporting evidence of time spent outside the United States.

Changing Jobs While I-485 is Pending

The AC21 (The American Competitiveness in the Twenty-First Century Act of 2000) has a few essential provisions centered on job flexibility for adjustment of status applicants who face long or delayed processing times. More specifically, it permits an approved I-140 to stay valid as long as:

•  The I-485 has been pending for a minimum of 180 days. This period begins from the receipt date of the I-485 (not necessarily the notice date).

AND

• The new job is in the same or a similar occupation.

Below is the provision of the law directly from USCIS:

A petition under subsection (a)(1)(D) [redesignated as (a)(1)(F)] for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual is changing jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.

Suppose USCIS approves your I-485 in less than 180 days, and you are interested in changing jobs after green card approval. USCIS will investigate whether you had the intention to file for that sponsoring employer while filing your application. The longer you can stay with your petitioning/sponsoring employer, the better your case is.

How Does USCIS Determine a Same or Similar Occupational Classification?

There is confusion about what qualifies as a similar job in many instances. For job porting purposes, USCIS officers consider the totality of evidence to decide.

Evidence includes, but is not limited to:

• DOL’s SOC system
• The job duties of both positions
• The skills, experience, education, training, licenses or certifications specifically required to perform each job
• The SOC codes
  • USCIS will analyze the SOC codes of the two jobs.. Importantly, there is no specific rule for matching any particular order of digits in two SOC codes.
• The wages associated with each position
• Any other relevant and credible evidence submitted by the applicant

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Job Change After I-140 Approval FAQs

Our immigration attorneys are often asked a lot of questions about this topic. Below, we compiled answers to the most commonly asked questions:

My I-140 is Approved, What’s Next?

When your I-140, Immigrant Petition for Alien Worker, is approved, you can begin the process to apply for Lawful Permanent Residency in the U.S. At this point, it is you, the employees responsibility, to initiate the process and not the employer’s.

There are two options for you to begin your LPR process once your I-140 is approved:

1. The first option is for those living abroad, the consular processing route. With this option, you apply abroad through the U.S. Embassy or the Consulate of your country of origin. This will involve submitting the DS-260 Online Immigrant Visa Application and attending the interview abroad.
2. The second option is to submit the Form I-485 Application to Register Permanent Residence from within the U.S., which does not require you to travel abroad to complete the process.

Can My Employer Withdraw My I-140 After USCIS Approved It?

Your petitioning employer may decide to send a withdrawal notice to USCIS, especially if you did not part ways on good terms. However, the timing of the withdrawal is important. For example, if the employer withdraws an I-140 less than 180 days after approval, the I-140 is no longer valid for AC21 portability or H-1B extensions. However, if it was approved and then withdrawn after 180 days, it remains valid

But if the stipulated 180 days have already passed, USCIS will not allow the employer to revoke the approved I-140 petition on account of the petitioner’s notice alone. Keep in mind that the employer can withdraw the I-140 at any time. However, even if the online case status is “withdrawn,” as long as your 180 days have passed and there is no element of fraud or misrepresentation suspected in your case, your I-140 can remain valid.

Can I Retain My Priority Date After I-140 Withdrawal?

You may still retain your priority date for an approved I-140. In addition, USCIS can grant your request to maintain the existing priority date for any other I-140 filed on your behalf. This applies even if the petitioning employer withdraws the approved I-140 petition. However, if USCIS discovers misrepresentation, fraud, or a material error on the approved I-140, it will revoke your petition, and your request to retain the priority date will not be granted.

Do I Have to Notify USCIS of My Decision to Change Jobs?

You must notify USCIS by filing Form I-485 Supplement J, which serves as the formal request to port your job offer to a new employer. This may save you from having your adjustment of status application denied even after your Form I-485 has been pending for more than 180 days.

USCIS will issue a Notice of Intent to Deny the I-485 application if a sponsoring employer requests the revocation of an approved I-140 petition after:

• the I-485 petition has been pending for 180 days
• there has not been a notification that you (the beneficiary) are using the AC-21 portability rule

Therefore, it is best to be proactive and notify USCIS.

Can My Spouse Apply for H-4 EAD With the Approved I-140?

An H-4 spouse can use your approved I-140 to apply for an H-4 EAD.Even if the petitioner withdraws the I-140 later, you can still use it for an EAD as long as the withdrawal happened at least 180 days after the I-140 was approved (or 180 days after the I-485 was filed) and USCIS has not revoked it for fraud or misrepresentation.

How Long Do I Need to Stay With My Employer After I-140 Approval?

Once your I-485 has been pending for 180 days, you can transition to a new employer without jeopardizing your status, provided the new role is in the same or a similar occupation

Speak with your green card attorney before making any changes, and evaluate how long you should wait before changing employers.

Will Changing Jobs After Approval Impact Naturalization?

A job change after approval can only impact your naturalization if USCIS suspects fraudulent intent, particularly in cases where you never intended to work for the sponsoring employer. However, if you have a filed Supplement J confirming your move to a same/similar role, your naturalization path remains clear. The risk only arises if you quit a sponsoring employer immediately after approval without having used the 180-day portability provision.

Negative Repercussions If Not Addressed Properly

Due to the sensitive nature of changing jobs after green card approval, it’s essential to be aware of the possible repercussions. Assuming you and your employer both intended to honor the conditions/terms on the I-140 when filing your I-485, you should be fine. However, if you change positions drastically or careers, be prepared to answer USCIS regarding your change when you file for naturalization.