Clarification on Work Authorization for I-485 Applicants
Posted Jun 10, 2000

In this article, we clarify the rules regarding working for another employer, after a person obtains the EAD card based on filing the I-485 Adjustment of Status application, when the basis for the I-140 Immigrant Petition approval is a labor certification and an offer of a full time permanent job by a U.S. employer. Some of you have contacted the Law Office of Sheela Murthy for guidance as to whether you can work for a different employer than the one who sponsored the labor certification and the “green card” application. The simple answer, as mentioned below, is: “No, a person is required to continue to work for the employer that sponsored the green card, even after obtaining the green card approval.” 

Some of the uncertainty surrounding this issue stems from public reaction to an INS announcement in July of 1999 that it would now be possible for persons in L-1, L-2, H-1B or H-4 status who had filed applications for adjustment of status to permanent residence (I-485) to maintain their H or L status while the I-485 was pending. We discussed this change in the June1999 MURTHYBULLETIN. One implication of this change means that it is now possible to use an H or L visa, rather than an advance parole document, to travel while the I-485 is pending. The ability to maintain H-1B or L-1 status is also a great help to persons who get married while their I-485 is pending, because they are now able to bring their spouses quickly to the U.S. in H-4 or L-2 status, rather than having to wait for approval of their own I-485 application and then have the spouse obtain a consulate interview for a permanent visa to “follow to join” as a dependent. 

In connection with the July 1999 changes, the INS also discussed the requirements for maintaining one’s H-1B or L-1 status while the I-485 was pending. One example was that if a person uses an employment authorization card (EAD) to engage in what INS called “open market employment,” (i.e. working for someone other than the sponsoring employer) then the person would not be maintaining the H or L status, but would simply be an I-485 applicant, and would need advance parole to travel. This simple statement caused a whole lot of misunderstanding, because many people quite reasonably took it to mean that they were able to freely change jobs. We therefore issued a clarification, explaining that the INS had not changed the requirement that a sponsored immigrant work for the sponsoring employer.

More recently, the INS issued a memorandum further discussing the requirements for maintaining H or L status while the I-485 was pending.  This memorandum, discussed in the May 25, 2000 MURTHYBULLETIN, included a reference to the example of a person working for an outside employer. Once again, as before, our attentive readers asked questions such as the following:  “Does this imply that someone who has an EAD and whose I-485 approval is pending can change employers?  Please clarify whether the INS has relaxed this rule.” The answer, in a word, is “no.”  We provide further clarification below.

Please keep in mind that in an employment-sponsored green card case, the whole case is based upon the particular job offer from the particular employer. Legally, this is considered a future job offer, meaning that the beneficiary must intend to take that job after the I-485 is approved, and the employer must intend to hire, or continue to employ, the person upon approval of the I-485. Both the employer and the employee need to show their good faith intent. Of course, in most cases, the sponsored immigrant is already working for the employer in the meantime. In almost all cases, the employer would expect him/her to be working for the company while the case is ongoing, as well as after the I-485 is approved. However, some employers may agree to rehire the person upon approval of the I-485 and allow him/her to work elsewhere in the meantime based upon an EAD or another H-1B. Also, many people, while continuing to work for the sponsoring employer, may take a second job on the side or start their own business on the side. The EAD can be used for those purposes as well. 

In no way does the INS guidance change the rules about employment - sponsored green cards. Sponsored immigrants are not free to say goodbye to the sponsoring employer while their I-485 is pending and never come back to work for them again.  The labor certification is for a future job offer and in order to avoid any accusation of fraud that may later result in loss of the green card, the person does have to work for the sponsoring employer after approval of the I-485. There is no set timeframe but most attorneys will recommend staying with that employer for about one year **after** the I-485 is approved.