In cases where beneficiaries had filed I Adjustment of Status application and had left the I sponsoring employer, in the event USCIS sought to revoke the I petition only the former employer would be given a notice and an opportunity to respond.
In many such cases the former employer would not have an interest in responding to such a revocation proceeding and the I petition may be revoked, on a number of grounds, without the knowledge of the beneficiary and without affording the beneficiary an opportunity to response or otherwise take action. Depending on the revocation grounds such revocation, however, may have a significant negative impact on the beneficiary including possible denial of a pending I, inability obtain subsequent H-1B extensions beyond the sixth-year limit, retaining priority date, obtain H-4 EAD for a spouse, and others.
We had reported and analyzed the prior litigation which ultimately led to this change in policy. Starting NovemberUSCIS will consider beneficiaries who have properly ported their I to a new employer under AC21 are considered to be affected parties and are entitled to receive a notice pertaining to the potential revocation of the approval of I petition. Read the entire policy memorandum. AC21 Porting Required.
Salary Difference for AC21 / Interview ?
The Policy Memorandum specifically states that only beneficiaries who have properly ported their I under AC21 are entitled to this notification. The Policy Memorandum includes some specific examples of revocation reasons. The contents of the notices may differ in order to protect sensitive employer information, especially in ability to pay cases.
In any case, the beneficiary is supposed to be given a clear indication of the adverse information and be afforded an opportunity to provide response and rebuttal evidence. A review of the possible reasons for I revocation outlines in the Policy Memorandum and as described above suggests that USCIS may consider a wide variety of reasons to revoke an I petition. Our office continues to monitor I cases and developments for possible expansion of I revocation proceedings.
The Policy Memorandum cites a number of reasons for I revocation and many of these reasons may be interpreted broadly to apply to a wide variety of I cases. The main concern is for nationals of India and China who have to wait a significant number of years between I and I approval and where there is a broader possibility of USCIS finding a flaw in the underlying I petition which may have been approved for many years. Consultation Options We offer a number of engagement and consultation options.
Employment obligation to employer after green card approval
Initial case evaluations and quotes are always free. Live Chats and Webinars We provide many opportunities for clients and readers to learn about new developments, ask questions or simply comment.
Join us for our weekly live chat or our monthly or more often webinars. Toggle SlidingBar Area.The American Competitiveness in the 21st Century Act AC21 permits an individual to seek new employment when the following conditions are met:. Form I has been approved, or is approvable when filed concurrently with I. SOC code : The SOC code assigned to the I based on your labor certification, or an appropriate code determined by the adjudicator if LC was not required, will be used to judge whether the new employment is the same or similar occupational classification.
The fact that you have left your previous employer prior to your I pending for days is not the basis for denial of your portability case since adjustment of status is based on prospective employment, rather than an existing one. However your I case will be denied if any of the following happens:. Your I is withdrawn by your employer before your I reaches days; or. Your approved I is revoked at any time, except when it is based on a withdrawal request from your employer not fraud related, for example submitted after your I has been pending for days; or.
You fail to prove that a bona fide employment relationship existed at the time of filing. So leaving too early obviously makes it more difficult to establish your case, especially if your employer is no longer willing to cooperate.
If an adjudicator has no knowledge of your using AC21 portability, and there is something wrong with your I revoked, for examplethe adjudicator is required to issue a Notice of Intent to Deny NOID your I Yes, because an I is the property of your employer, not yours. However this will not affect your ability to port to a new employer as long as your I has been pending for more than days.
The days is based on calendar days not business days. As long as you meet the eligibility requirements each time, you are able to port your I more than once. No, but it is required to be in the same or similar occupational classification.
This means same or similar job title and job duties. While adjusting your IUSCIS will also evaluate the potential of you becoming a public charge so it is essential that your new employer has relevant materials ready, which may include the same documents required as proof of ability to pay.
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Using AC21 if leaving your employer before the days: The fact that you have left your previous employer prior to your I pending for days is not the basis for denial of your portability case since adjustment of status is based on prospective employment, rather than an existing one.
However your I case will be denied if any of the following happens: Your I is withdrawn by your employer before your I reaches days; or Your I is denied by the USCIS at any time; or Your approved I is revoked at any time, except when it is based on a withdrawal request from your employer not fraud related, for example submitted after your I has been pending for days; or You fail to prove that a bona fide employment relationship existed at the time of filing.
Can my employer withdraw the approved I? Calculating the days for AC21 eligibility: The days is based on calendar days not business days. Using AC21 portability multiple times: As long as you meet the eligibility requirements each time, you are able to port your I more than once.Green card applicants often ask if they are able to change employment while waiting for final approval. The answer is yes, if you follow established portability rules. Generally, if your I application has been pending for days or more, you are eligible to change jobs and continue your green card application.
However, portability rules have pitfalls you must avoid, or your green card application can be denied. Is my application dependent upon my employer? Therefore, applicants in these categories can change employers at any time so long as they continue to work in the field of extraordinary ability or national interest, as applicable.
Has the I petition been approved?
If your I petition has been approved, then your chances of approval based upon portability are better. If you change positions after your I has been pending for days and your I is approved, then your green card can be approved, even if your sponsor cancels the I petition. Even if your sponsor does not withdraw the pending I petition, the government could deny the I petition for other reasons. As a result, your I application will be denied even if it has been pending for days.
Although the government cannot deny your I application on the sole basis that you left your employer before days have passed, it can issue a request for evidence RFE to determine whether the original offer of employment was bona fide. To avoid these risks, wait until your I application has processed for days before changing positions. To determine whether the new position is comparable to the sponsored position, the government looks at the following factors and you should do the same:.
Will the new employer provide a supporting letter for your I application? The government usually requires an update on your employment status before approving your green card.
Your new employer should provide a letter describing your new position, including duties and responsibilities as well the salary of the position. Be sure the new employer agrees to provide this letter before you change jobs.
Portability rules are complex. Contact a qualified immigration attorney to ensure a safe transition to your new employment.The excitement is noticeable surrounding the prospect of finally receiving approvals on I applications filed long ago.
The news has resulted in some questions and topics for consideration, including those related to the timing of potential job changes. The U. Similarly, the beneficiary promises to accept that position upon approval of the green card. Thus, such individuals are expected to follow through, working in their sponsored positions for a reasonable duration once they receive green card approval.
Failure to do so may create serious problems for these individuals later, particularly if they attempt to naturalize to U. They have viewed it from their own vantage point, as a long series of challenges. They may have worked for their respective employers for years, but while this generally improves the likelihood that these cases will be approved, it does not void the need to work for the sponsoring employer in the sponsored job following I approval.
If there is a desire to change jobs, either within the green card-sponsoring company or by moving to a new employer, there may be an option under the American Competitiveness in the 21st Century Act AC This is permitted if there is a valid I employer petition and an I that has been filed and pending with the U.
As mentioned, AC21 applies to a change in the qualifying employment offer prior to I approval. Therefore, if a job change is desired or necessary, it ideally should occur before the I approval. In this way, the basis for the green card case shifts from the original sponsor to the new job offer, either with the same sponsor or with a new sponsoring employer. This results in a shift of the expectation of continued employment after green card approval to the new job.
As discussed, an employment-based green card case is typically based on a job offer. In considering the use of AC21, the new job offer should exist prior to approval of the I It is not necessary, however, to start employment in the new position prior to green card approval. It is not uncommon for a foreign worker to accept a job offer, give the current employer proper notice, and, while working out the notice period, obtain the I approval.
In such a case, AC21 still applies, because the new job offer existed before the approval. These individuals are expected to start their new, AC21 jobs upon, or very shortly after, receiving I approval. Proof of the date of the job offer normally is contained in an offer letter or other related communications with the new employer. It is important to understand that the example here is quite different from accepting a new job offer shortly after receiving the green card or the I approval.
AC21 portability is available prior to approval; afterwards, it is not mentioned as a viable option anywhere in the statute or USCIS guidance. The timing of a job change can be important when there is the possibility of I approval. Those who are contemplating such changes should seek appropriate legal advice as part of the decision-making process.The short answer is, once the foreign employee has received their green card, there is no minimum period the employee is obligated to work for the employer who sponsored their employment-based green card.
The critical question is whether there was a bona fide job offer and whether the employee intended to work for the sponsoring employer at the time the employer filed the adjustment of status application Form I PERM and adjustment of status is a lengthy process.
A variety of circumstances can occur that may result in the employment termination by the time you receive your green card. Absent fraud, it should not matter whether the company terminated your employment or whether you decided to leave the company. For example: you worked for the same employer prior to your adjustment of status application; the company had downsized and was forced to let you go; a medical condition, etc.
To substantiate your explanation during the interview, it would be helpful to show any relevant records relating to your employment offer, time with the company, severance package, or cause for termination of employment. Further, even Congress had recognized that life happens during the long employment-based immigration sponsorship process. In conclusion, if you want to change your employer or employment fields entirely or quit working all together after you receive your green card, the main question is whether you intended to work for the sponsoring employer at the time your green card application was filed.
Thus, if you clearly intended to work for the employer that sponsored your green card process, there is no specific time period during which you are required to work for that employer after you become a permanent resident. In any situation, you should consider consulting with an immigration attorney before making any employment changes to help you make an informed decision about how to proceed further.
Previous Next. View Larger Image. Are you considering accepting new employment and want to know what your employment obligation to employer after green card approval is?
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March 22nd, 0 Comments. February 23rd, 0 Comments.Skip to main content. If you have a pending Form I, 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, Immigrant Petition for Alien Workeris 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 petition was filed.
The purpose of the SOC system is to organize occupational data and classify workers into distinct occupational categories. The SOC system covers all occupations where work is performed for pay or for profit. Occupations are generally categorized based on the type of work performed.
Additionally, certain occupations are also classified based on the skills, education and training required to perform the job. The SOC system is organized using codes, which generally consist of six numerical digits.
For example, the SOC code for a stonemason is USCIS officers consider multiple factors when deciding if two jobs are in similar occupational classifications for job porting purposes. USCIS officers may compare factors including, but not limited to:. USCIS officers will view 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. 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, there is no hard and fast rule for matching any particular order of digits in two SOC codes. In this particular example, even matching additional digits of the SOC codes may not show whether or not two jobs are similar.
The job description for a stonemason is:. Build stone structures, such as piers, walls, and abutments. Lay walks, curbstones, or special types of masonry for vats, tanks, and floors. 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. Align structures or plate sections to assemble boiler frame tanks or vats, following blueprints.
Work involves use of hand and power tools, plumb bobs, levels, wedges, dogs, or turnbuckles. Assist in testing assembled vessels. Direct cleaning of boilers and boiler furnaces. Inspect and repair boiler fittings, such as safety valves, regulators, automatic-control mechanisms, water columns, and auxiliary machines.
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. The March 18, Memorandum indicates that USCIS may consider the wages offered for the original position and the new position when determining whether the two positions meet the requirements for job portability. However, USCIS will not necessarily conclude that the two positions are the same or similar based solely on whether the wages are the same or not.
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 which could affect compensation structures, as well as moving from a for-profit to a non-profit employer.
You must establish by a preponderance of the evidence that the relevant positions are in similar occupational classifications. 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 the original and the new positions are in the same or a similar occupational classifications. Further, if you move into a managerial or supervisory role and establish that the new position involves managing the same or similar occupational classifications as your original position, USCIS may treat such evidence favorably.
You may still be eligible for j portability if you are able to establish through a preponderance of the evidence that your job change reflects a normal career progression, even if you are not managing anyone whose job is in the same or similar occupational classification as your position, if you can demonstrate that you are performing or overseeing some of the same types of duties or functions that are associated with your original position.
The job description for a stonemason is: Build stone structures, such as piers, walls, and abutments. 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.
Share This Page. Temporary Workers. Permanent Workers. Students and Exchange Visitors.I am hoping that knowledgeable forum members like JimmyHou might be able to advise me on this University A was the sponsor listed on my I approval notice. Three years later I changed employers to University B. Since this happened more than 6 months after my I AOS petition was pending, my lawyer sent USCIS a letter informing them that I was changing employers invoking AC21 provisions, and that my new job was identical to the old one.
Two years after that I got my GC. Once again, new job is pretty much identical to the old one. My question is, will any of this cause issues with my naturalization process? People say an EB GC holder is supposed to still be working for one's original GC petitioning employer when he applies for naturalization, but in my case as I said I invoked AC21 to change employers long before I even received my GC, not to mention I once again changed employers this year No, not a problem.
Once you are a green card holder, you can change, nowhere it says that you have to keep working for the same employer until you are naturalized Now, having said that, it is very advisable to at least keep working for some time like at least 6 months for the sponsoring company, but you worked with the same employer for 5 years!!
I, for instance, also had an employment based GC, and after working for some time at my sponsoring company, I started working on my own I am self employed as a contractor working on the same field, but just as a consultantNow, my sponsor became my client, but that is just a detail and when I had my naturalization interview, the agent doing the interview did not ask me anything Of course, every interviewer is different, and sometimes when they see something peculiar in your file they might want to dig a little more, but again, I don't see any issue in your situation.
Thank you dchamero for your very enlightening response and example You need to be a member in order to leave a comment.
Sign up for a new account in our community. It's easy! Already have an account? Sign in here. Register to Reply or Ask a Question Go to first unread post. Posted July 28, Share this post Link to post Share on other sites. Not a problem once you are a green card holder. Didn't find the answer you were looking for? Ask our VJ Immigration Lawyers. Create an account or sign in to comment You need to be a member in order to leave a comment Create an account Sign up for a new account in our community.
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