Legal services are subject to a separate attorney agreement between VisaNation Law Group PLLC (formerly SGM Law Group PLLC) and you. In addition, if youve taken a new position thats not the same job as your last, the change may raise red flags with USCIS. 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 petitioners notice alone. 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. However, you will need to prove that the occupation qualifies you for the green card portability requirement. Q. For this, the I-140 must remain valid until the H1B petition approval. While some applicants may not have a choice other than to wait, others may be able to use the portability rule to their advantage. As noted above, once the I-140 is approved, the USCIS will grant a request for priority date retention for any other I-140 petition filed on behalf of the same beneficiary. Second, they will evaluate the submitted evidence together to make their final decision based on the total requirements for NIW. However, he soon loses interest in the job and instead desires to become an electrical engineer instead. Meeting the above requirements does not mean you have automatically ported from one green card to another. 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of an H-4 spouse to continue to obtain H-4 EADs on the basis of the approved I-140 petition, even if the I-140 has been withdrawn or the employer goes out of business after 180 days. Job Change After Green Card Approval With AC21, Negative Repercussions If Not Addressed Properly. 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. 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. An advanced degree simply means anything higher than a bachelors degree and does not mean you need a Ph.D. Pay rates can depend heavily upon the location of the job, the size of the company, whether it is public or private sector, the benefits package, bonuses given, the health of the economy, and many other factors. 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. Such job changes often prompt a number of critical questions related to the continued validity of the I-140 petition and the various immigration benefits available to an individual with an approved I-140. However, it can affect your naturalization application if your job history raises red flags with the immigration officer adjudicating your case. Not everyone who applies for an EB-2 green card is eligible for an NIW. 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. The AC21 law uses the terminology same or similar job classification. The Legacy INS June 2001 guidance refers us to the U.S. Department of Labor system of occupational classification as a guideline. When referring to the SOC system, USCIS will analyze the SOC codes of the two jobs it is comparing. Job Change After I 140 Approval Green Card Portability Rules How Can I Transfer My H 1b To A New Employer And Keep My Green Perm Labor Certification Transfer Changing Jobs During The Process 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.. If the I-140 has been approved, then the concern is whether the employer will withdraw it before the 180-day point. 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. It can be attempted; however, one of the major concerns in a layoff situation is the I-140. The, PERM and NIW are two different cases, handled by different agencies. If you meet the above two qualifications, you can use I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) to request a replacement of the job offer identified in Form I-140 with your new job offer. Evidence for this could be found in your educational background, past experience, or current progress in your enterprise. 2023 Murthy Law Firm. Looking for U.S. government information and services? 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. The original I-140 would have identified an SOC code for your first job offer, and USCIS officers will compare that SOC code to the SOC code for your new job offer. Even if the I-485 has been pending 180 days, it is quite risky if the I-140 has not been approved. 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. While the twenty-first-century act allows you to work in the U.S. permanently, the process can be complicated. Filing Tips for Specific Visa Categories that Do Not Require a DOL-Approved Labor Certification. There are no forms, applications, or petitions to file. 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. Legal services are provided by VisaNation Law Group PLLC, a Florida professional limited liability company. Processing times vary as USCIS evaluates each application on a case-by-case basis. 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. We have all learned a lot about AC21 since it became law in October 2000. This does not prevent the case from being approved, however. 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. 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 which position you hold. In fact, the I-140 petition generally cannot even be used for a new position with the same employer that filed the I-140. This applies even if the petitioning employer withdraws the approved I-140. Similarly, a new I-140 petition is not required if the beneficiary meets the job portability requirements pursuant to the American Competitiveness in the Twenty First Century Act (AC21), as detailed in the MurthyDotCom NewsBrief, Final Policy on AC21 Same or Similar Job Requirement (07.Apr.2016). For example, if you were an IT professional, the new job must be in the same occupational classification as your old job. together with your I-485. 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. If you can afford it, you can file as many petitions as you want. You may file your I-140 for NIW and I-485 for status adjustment concurrently (together at the same time). This is a simple application to adjust your status based on the green card petition you filed. The I-485 is based on the I-140, however, which is the employers filing. 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. They use the Standard Occupational Classification (SOC) to group jobs/occupations. If you can afford it, you can file as many petitions as you want. The USCIS Policy Manual [7 USCIS-PM E.5] instructs USCIS officers that they may refer to DOLs SOC system in making portability determinations. Applications are pending from the time they are filed with the USCIS. 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. It is important to note that the duties generally govern, and not specific technologies, in most cases. Changing Green Card Categories After I-140 Approval, I-140 Portability: How to Port from EB-3 to EB-2. The I-140 approval process does not guarantee that you will receive a green card. Specialty Occupations (H-1B and H-1B1 Visas), Treaty Traders or Investors or Australian Professionals (E Visas), Temporary and Seasonal Workers (H-2A and H-2B), EB-1B Outstanding Professors and Researchers, EB-1C Multinational Managers and Executives, Physical Therapist or Registered Nurse (Schedule A), EB-3 Professional, Skilled Worker, Other Worker, Litigation, Notice of Intent to Deny, Notice of Intent to Revoke, Request for Evidence, Changing Employers on H-1B After I-140 Approval. 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. 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. The National Interest Waiver is a great way for entrepreneurs, doctors, engineers, and even accountants to bypass obstacles along the path to a green card. How Long Do I Need to Stay With My Employer After Green Card Approval? 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. The I-140 indicates an offer of a future permanent job. Your new position should be in the same or similar occupational classification. It is recommended that you engage the service of an experienced immigration lawyer to improve your chances of petition approval. Q. Changing your job before you physically receive your visa will incur problems if not handled correctly. The new job must be within the same occupational classification as the original one. Align structures or plate sections to assemble boiler frame tanks or vats, following blueprints. The waiting time for certain countries demonstrates this difference. These are: Now that we know exactly what an NIW is and how to obtain one, we can see how the rules might allow changing jobs after national interest waiver approval. How do I exercise the portability provisions? 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. Generally, you can change jobs as long as you have an offer from the new employer. 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. 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. But without a PERM or I-140, you will have to leave the United States at the end of the six-year validity period. You may have gotten a promotion and now want to apply for a green card portability program. There are some key concerns in this situation. Although the NIW requirements, as in the. Though, this time greatly depends on the assigned USCIS Service Center and the adjudicating officer. It also stands to reason that few physicians would be able to claim expertise in more than one specialized area of medicine. Many employers do not withdraw I-140s upon employment termination. USCIS officers consider multiple factors when deciding if two jobs are in similar occupational classifications for job porting purposes. 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). If an I-140 petition is withdrawn after 180 days, the employee can still utilize the AC-21 rule. A job change, however, may not always disrupt the I-140 process. 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. What are the Penalties for Form I-9 Violations? Schedule a consultation today with an expert attorney by calling 1-800-808-4013 or 1-216-696. Inspect and repair boiler fittings, such as safety valves, regulators, automatic-control mechanisms, water columns, and auxiliary machines. now I am relocating to State TX and will be working remote (WFH) with same employer A and same role. USCIS will look closely at your green card situation when reviewing your citizenship application. The most important thing is to present your evidence to USCIS in a convincing way. 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. Changing Jobs After National Interest Waiver Approval. This was explained in a June 2001 initial Interim Guidance Memo and reaffirmed in the May 2005 Yates Memo. 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. 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. First, the new job must be within the same company, not a different organization. Before you can apply for green card portability, you must have an approved form I-140. Because of these factors, changing jobs after your NIW is approved is only possible if you stay in your original field of expertise. Job change After i-140 Approval: Green Card Portability 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. The Department of Labor (DOL) uses the Standard Occupational Classification (SOC) system to group and classify jobs and occupations. Direct cleaning of boilers and boiler furnaces. Copyright 2019, MURTHY LAW FIRM. You should notify USCIS of your intention to change jobs under the AC-21 Act as soon as possible. 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. There are some rules regarding the green card portability and I-140 petition. If youve been approved for a green card, youll need to file a new Form I-140 application for the new job. Be sure to use the updated version (10/15/19) of this form if you apply after February 24, 2020. In other words, an employee who is currently being sponsored by one employer can look for a different employer without having to abandon their current application for a green card. Virtually identical jobs may substantially vary in terms of pay. Dont go it alone, be sure to hire an expert to help you with your case. 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. 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. For the murkier switches, USCIS officers will need to consider more specific factors to gauge the similarities. However, you cannot use the tasks you have completed in the past with your new employer. 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. 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. As noted above, USCIS does not use a simple numerical comparison of SOC codes to determine if two jobs are the same or similar. The original I-140 would have identified an SOC code for your first job offer, and USCIS officers will compare that SOC code to the SOC code for your new job offer. If you are applying for a green card, you can change jobs if your application is pending for more than 6 months. 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. VisaNation Law Groups immigration lawyers have a long track record of success in helping people get their EB-2 green cards with the NIW or without it. 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 occupation will be assigned to more than one category with six digits. 47-2[02]2: The fourth and fifth digits, 02 represent the broad occupation, which includes brick masons, block masons, and stonemasons. The best proof that a job offer is valid, however, is working for the sponsor. Official websites use .gov Can I use AC21 portability? Included in our work on the case is a notification of the use of AC21, along with proof that the case qualifies under the AC21 requirements. 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. Due to the sensitive nature of changing jobs after green card approval, its essential to be aware of the possible repercussions. 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). USCIS aims to determine in all cases whether a new position is in the same or similar occupational classification as the original job offer. Remember that an I-140 approval does not automatically guarantee your green card. I have a bachelors degree and over five years of experience in the field. The best way to ensure that you are on the best path to your green card is to consult an immigration attorney. You may be wondering why it is important to consult a green card attorney when changing jobs. Therefore, they would not be able to change jobs outside their field after NIW approval. If any of those things change, then the PERM can no longer do its job to protect the jobs of U.S. workers. The SOC system covers all occupations where work is performed for pay or for profit. If your petition to port the green card application from one job offer to another is successful, you can successfully change jobs without worrying about losing your place in line for a green card. 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. Consult with your green card attorney to ensure the change will not affect your application. If the USCIS receives the employers withdrawal request within 180 days of the I-140 petition approval, the USCIS will revoke the approved 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. Also, the employer will be exposed to the possibility of an audit. In this particular example, even matching additional digits of the SOC codes may not show whether or not two jobs are similar. Yes, you may change employers after your NIW has been approved. If USCIS approves the I-140, you can request to extend your H-1B status for up to three years. Although the NIW requirements, as in the Matter of Dhanasar, state that a petitioners education background is one of the factors that can help determine if they are well-positioned to advance their proposed endeavor, it doesnt stipulate a Ph.D. as a requirement. Q. You may also file. 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