What is the most important factor in proving NIW eligibility? The new job will start in Aug 2023 if I accept the offer. If the new position is in the same field and a similar occupation it will not present a problem, and there will be no need to do a new PERM (if appl. 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. Next, you will need to plan the last step of the "green card process" (or adjustment of status (AOS) to permanent resident), if it was not concurrently filed with your I-140. We have all learned a lot about AC21 since it became law in October 2000. Evidence for this could be found in your educational background, past experience, or current progress in your enterprise. What are the Penalties for Form I-9 Violations? The new job must be within the same occupational classification as the original one. It is typically between 3 to 9 months. Your use of this website and our software platform are subject to VisaNation Inc.'s privacy policy and terms of use. The new job is in the same or similar occupation. and schedule your comprehensive consultation today. 2023 VisaNation, Inc. All Rights Reserved. The priority date may be retained even when the prior employer withdraws the I-140, or the prior employer goes out of business. While the I-485 may take several months or even years before a decision depending on your priority date, the I-765 can be processed within a few months allowing you to continue using it to work or even seek employment. have a long track record of success in helping people get their EB-2 green cards with the NIW or without it. If you have received your I-140 approval and are planning to change jobs, you will need to prepare a new labor certification and I-140 petition. Because of this, if youre changing jobs and employers before or after I-140 approval, you need a new PERM. , which includes advancing your proposed endeavor and that the proposed endeavor continues to be of national importance to the United States. So, getting an EAD through I-485 likely remains your best option. On the whole, most people who change jobs after National Interest Waiver approval do not encounter difficulties provided that they stay within their field. USCIS will issue a Notice of Intent to Deny the I-485 application if a sponsoring employer requests for the revocation of an approved I-140 petition after: Therefore, it is best to be proactive and notify USCIS. 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. Examples include those who, in the process of waiting, have: Suppose you have experienced any of the above scenarios. 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. need to demonstrate that their work in the U.S. will be in the national interest. 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. First, you must notify the USCIS if you have changed your employer. [47]-2022: The first two digits, 47 represent the major group, which includes all construction and extraction occupations. I have a pending EB-2 PERM filed by my employer. Your personal information is protected by our Privacy Policy. Discuss whether your occupation fits the criteria with your immigration attorney. Due to the sensitive nature of changing jobs after green card approval, its essential to be aware of the possible repercussions. There have been many qualified petitioners with outstanding achievements whose petitions were rejected because of poor presentation. Copyright 2019, MURTHY LAW FIRM. USCIS aims to determine in all cases whether a new position is in the same or similar occupational classification as the original job offer. 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. Can I Retain My Priority Date After I-140 Withdrawal? The purpose of the SOC system is to organize occupational data and classify workers into distinct occupational categories. However, the timing of the withdrawal will determine whether USCIS will revoke the I-140 or not. However, the old and new job offers must both be in the same or similar occupational classification for the AC21 job portability to apply. What is the EB-2 NIW green card processing time? You could potentially save yourself years of waiting time. 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 employees country of birth, priority date, and preference category. 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. Do I need to have a Ph.D. to qualify for NIW? There are some rules regarding the green card portability and I-140 petition. Under the 2005 Yates memo, there are still possibilities for approval, but many pitfalls remain. First, USCIS mails the paper Approval Notice (I-797) to your employer and attorney. How Do I, the Employer, Examine Documents? 1. If this is the case, youll need to seek legal advice and apply for a new green card. She has been named a Top 10 Immigration Law Attorney and received a 10 Best Award for Client Satisfaction. Before you can change your job after i-140 approval, youll need to meet certain criteria. 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. One of the primary potential problems arises if an RFE is issued. You must keep your I-140 and other approval notices in a safe place. The SOC system is organized using codes, which generally consist of six numerical digits. If the new job is not, USCIS may refer to the DOL market expertise, which classifies workers into distinct occupational categories. More specifically, it permits an approved I-140 to stay valid as long as: 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. Legal services are provided by VisaNation Law Group PLLC, a Florida professional limited liability company. 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. AC21 is a law that does not have regulations implementing its provisions. It gives additional flexibility to the individual and the employer to permit promotions or other job changes within the company. 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. Processing times vary as USCIS evaluates each application on a case-by-case basis. You may request to port your job offer using the Form I-485, Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j). Answer 1.No, you will get an H-1B extension for the time remaining and you can actually claim one year extra if your PERM was filed more than a year ago. Second, they will evaluate the submitted evidence together to make their final decision based on the total requirements for NIW. The later May 2005 Yates Memo makes the same references. The new petition must reflect the latest achievements that now qualify you for the higher preference category. You are required to notify USCIS of any address changes within ten days of your address change (unless you permanently depart the U.S. or become a U.S Citizen). I don't recommend it. Changing Jobs After National Interest Waiver Approval. 47-[2]022: The third digit, 2 represents the minor group, which includes all construction trade workers. The fact that you have a pending PERM application doesnt stop you from pursuing an NIW petition. This may grant you an extension beyond the maximum six-year period of stay. Often, it is best to file a new green card case as a backup, even if it is potentially possible to pursue a pending green card case. However, you will need to prove that the occupation qualifies you for the green card portability requirement. If, while waiting for your date to be current, you gain eligibility for a higher preference green card, a new sponsoring employer can file a new petition and PERM and still retain your priority date. Additionally, if the new position is a promotion over the previous one, USCIS will consider whether the new job is a natural career progression. You must be able to prove that you are able to develop your enterprise. 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. Share sensitive information only on official, secure websites. 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. Since there is no particular job or talent that definitively determines national importance, it is then left to every petitioner to prove their eligibility based on what they possess. As such, there are no specific legal requirements as to what, if anything, has to be filed when AC21 is used. It can be attempted; however, one of the major concerns in a layoff situation is the I-140. Our strategy for new clients with AC21 cases is to take over representation in the I-485 and act as the attorney for the remainder of the case. Can I still file an EB-2 NIW? You need to work for five years in a medically underserved area in the U.S. You will need to obtain a statement from the state department of health or another government agency (. ) Unlike the H1-B, there is no requirement for the employer to notify the USCIS of termination of the employment or withdraw the I-140 petition. You may also file. Also, the employer will be exposed to the possibility of an audit. It requires your employer to file a new PERM Labor Certification and Form I-140 petition. During the green card application process for foreign national workers, it is possible to change jobs without affecting the processing of your application. The only implication is that there is a non-refundable fee attached to each petition you file. a green card) with the petitioning employer. If your presentation is too long and incoherent, the adjudicating officer may find it difficult to identify your merits and qualifications. The best way to ensure that you are on the best path to your green card is to consult an immigration attorney. In this post, well explore the process of a job change after green card approval, what to expect, and more detailed scenarios. However, in certain cases, it is possible to change jobs after your I-140 has been approved. Keep in mind that the employer can withdraw the I-140 at any time. Yes, you can still file the NIW application. Not everyone who applies for an EB-2 green card is eligible for an NIW. If you are an employee hoping to use AC21 to change jobs, or you are an employer hoping to hire someone with a pending employment-based green card application, Yekrangi & Associates is ready to assist. 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. You can switch to any career of your choice as long as you can provide convincing evidence to prove that what you are doing is benefiting the U.S. economy or general well-being. 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. Many who have filed their I-485 applications have or will experience years of waiting time for visa number availability due to retrogression. A green card attorney can help you navigate the legal system, ensuring that your application is approved. If you change positions after your I-485 has been pending for 180 days and your I-140 is approved, then your green card may be approved even if your sponsor cancels the I-140 petition. 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. Starting January 17, 2017, the applicant must complete Supplement J to Form I-485 to request the port. Depending on the circumstances, the USCIS may favor the new job over the former one. Consult with your green card attorney to ensure the change will not affect your application. Therefore, the best measure is to change jobs where the titles and job descriptions are as similar as possible. 500, Falls Church, VA 22041, Deferred Action for Childhood Arrivals (for DREAMers), Effect of a Grant of Asylum or Withholding of Removal, I-601A, Application for Provisional Unlawful Presence Waiver, Minor Children Applying for Asylum by Themselves, Obtaining an Employment Authorization Document After an Asylum Application, Procedure for Filing for Asylum or Withholding of Removal, The Two Paths to Obtaining Asylum in the United States. There is confusion about what qualifies as a similar job in many instances. That requirement only takes effect when an employee has filed an I-485 application and seeks to use the green card portability provision of AC-21 to move the green card process to the new employer after 180 days. The only stipulation is that you must submit a new Form I-140 or labor certification application. It is therefore the day that the case actually was received by the USCIS that governs; not the date that the USCIS generated the receipt notice. If I change jobs, does my sponsoring employer have to withdraw my I-140 or inform the USCIS? 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. Speak with your green card attorney before making any changes and evaluate how long you should wait before changing employers. If youve been approved for a green card, youll need to file a new Form I-140 application for the new job. |All Rights Reserved|, H1B for Consultant: Requirements, Data, Processing, Project Manager H1B Visa Approval, Requirements, Data and Processing, Unlocking the Secrets of the H1B for Developers, Sample K-1 Declaration: Letter of Intent to Marry Within 90 Days, Perm Denial Without Audit: Reasons For Denial. A job change, however, may not always disrupt the I-140 process. The second option is to submit your I-485 within the U.S., which does not require you to travel abroad to complete the LPR process. Retaining your priority date is also the trick to porting your green card. Not everyone who applies for an EB-2 green card is eligible for an NIW. As long as you follow certain rules, you can switch jobs while your I-140 is pending. Legal services are subject to a separate attorney agreement between VisaNation Law Group PLLC (formerly SGM Law Group PLLC) and you. It is important to note that the duties generally govern, and not specific technologies, in most cases. USCIS officers will review the I-140 and compare the two job offers. You must have the same or similar occupation to be eligible for portability. In fact, it is advantageous to do so because if one petition is denied, chances are the other one will be approved. Another option is to upgrade your pending I-140 petition with premium processing if your six-year stay is about to expire and you dont want to leave the U.S. With that, you will receive a decision on your petition within 15 calendar days. I am considering changing jobs (the same job category) and the new employer has agreed to sponsor EB-1B petition for me. Where no I-485 application has been filed, priority date retention occurs when the new employer files a new PERM labor certification on behalf of the employee and requests that the previous priority date be honored at the time of filing a new I-140 petition. There could be a number of reasons USCIS denied your National Interest Waiver request, including: If your request is denied by the USCIS, you may be able to appeal the decision with help from your immigration representative. You should notify USCIS of your intention to change jobs under the AC-21 Act as soon as possible. And how do I continue to work lawfully while the petition is pending? Do I need to file the PERM again or just the H1B Amendment is good. Secure .gov websites use HTTPS USCIS will investigate whether you had the intention to file for that sponsoring employer while filing your application. However, if you are in the process of changing jobs before this period, you should talk to a professional immigration attorney to understand the rules before making a decision. Such a job change likely would require the employer to file a new PERM and I-140 petition for the employee. Know the rules about green card portability before you change jobs. If AOS is selected, we have an option for "concurrent filing" of the I-140 and I-485. Yes, you may change employers after your NIW has been approved. USCIS officers consider multiple factors when deciding if two jobs are in similar occupational classifications for job porting purposes. My attorney suggested I needed to file H1B Amendment, since my current H1B is active till Dec 2023. To qualify, you need to show that the job change reflects your normal career progression. 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. For example, if you move into a more senior but related position which is non-managerial, USCIS will use the criteria explained above to determine whether you are primarily responsible for managing the same or similar functions of your original job or the work of persons whose jobs are in the same or similar occupational classification(s) as your original position. The fact that you have a pending PERM application doesnt stop you from pursuing an NIW petition. Q. I am afraid that, if I change my job, my employer will try to harm my green card case. At the same time, there have been people with lesser achievements whose petitions were approved because of their advocacy. The new position must match the original job description and SOC code listed in the I-140. In many situations, therefore, this does not present a significant problem. 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. What green cards bypass the labor certification process and allow me to self-petition? 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. The I-485 is based on the I-140, however, which is the employers filing. As noted above, USCIS does not use a simple numerical comparison of SOC codes to determine if two jobs are the same or similar. An added benefit of waiting 180 days after I-140 approval is the ability of an H-4 spouse to continue to obtain H-4 EADs on the basis of the approved I-140 petition, even if the I-140 has been withdrawn or the employer goes out of business after 180 days. However, if youre planning to switch jobs during the green card process, you should contact a legal professional to help you through the process. Answer (1 of 7): You can change your employer right after your I-140 got approved with current employer, but here is the point i suggest you to be with current employer for 180 days after your approval with them. The new job: Suppose you have a pending PERM application doesnt stop you from pursuing an.! Uscis will investigate whether you had the intention to file a new PERM and I-140 petition quot! Professional limited liability company may find it difficult to identify your merits and qualifications this is the most important in. 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's privacy policy and terms of use subject to VisaNation Inc. 's privacy policy and terms of.! Fits the criteria with your green card portability requirement change employers after your has... Could be found in your enterprise also the trick to porting your green card portability requirement 17 2017. To your green card is to organize occupational data and classify workers into distinct occupational categories job change after i140 approval quot ; filing. Found in your enterprise Amendment, since my job change after i140 approval H1B is active till Dec 2023 EB-2 cards. Your NIW has been approved PERM application doesnt stop you from pursuing an NIW petition you change! Jobs are in similar occupational classifications for job porting purposes ; concurrent filing & quot concurrent... Require the employer will be approved other one will be in the references! Which generally consist of six numerical digits pending PERM application doesnt stop you from pursuing an NIW petition USCIS to. 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