Job Change During or After I-485 Approval

Due to the expected forward movement of cutoff dates for employment-based, second preference (EB2) India, many EB2 applicants hope to become eligible for adjustment-of-status (I-485) filings or approvals during August and/or September 2013. The excitement is noticeable surrounding the prospect of finally receiving approvals on I-485 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.

Requirement to Work for GC-Sponsoring Employer

The U.S. government grants employment-based permanent residence (commonly referred to as the “green card”) because an employer has established that there is need for a particular worker. Employment-based green cards generally are based on a future job offer concept, regardless of whether the foreign national is working for the employer / sponsor throughout the processing of the green card case. The employer offers a “permanent” position that is set to begin upon approval of the green card. 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.S. citizenship.

Foreign workers are often surprised by this, never having received a clear explanation of the purpose of the green card, from the government’s point of view – why the immigration benefit is granted. 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-485 approval.

AC21 Option Viable Prior to 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 (AC21). This is permitted if there is a valid I-140 employer petition and an I-485 that has been filed and pending with the U.S. Citizenship and Immigration Services (USCIS) for at least 180 days. If these conditions are met, the I-485 can be approved based on an alternative job offer, as long as that offer is in the same (or a similar) job category as the position in the labor certification / I-140, upon which the I-485 was based. Readers not familiar with AC21 concepts should review related articles on MurthyDotCom, including AC21 Frequently Asked Questions: July 2012 Update.

As mentioned, AC21 applies to a change in the qualifying employment offer prior to I-485 approval. Therefore, if a job change is desired or necessary, it ideally should occur before the I-485 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.

Nuances: Job Offer is Key

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-485. It is not necessary, however, to start employment in the new position prior to green card approval. This can become important, given the unpredictability of cutoff date movement and the need to give proper notice to one’s current employer. 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-485 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-485 approval. Proof of the date of the job offer normally is contained in an offer letter or other related communications with the new employer.

Potential Risk of Green Card Revocation

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-485 approval. AC21 portability is available prior to approval; afterwards, it is not mentioned as a viable option anywhere in the statute or USCIS guidance.

Conclusion

The timing of a job change can be important when there is the possibility of I-485 approval. Those who are contemplating such changes should seek appropriate legal advice as part of the decision-making process. Attorneys at the Murthy Law Firm are available to provide clarity or a second opinion through legal consultation, or to represent companies and/or foreign national workers in these matters.

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