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Changing Jobs: USCIS Policy
Is it a good idea to change a job when your I-485 — application for adjustment of status — is pending? Attorney Mahesh Bajoria walks you through the dense thicket of immigration law and USCIS policy.
To change your job when I-485 — application for adjustment of status — is pending before the United States Citizenship & Immigration Service is a crucial decision. With the retrogression of visa numbers and long wait for the adjustment of status visa availability for petitioners from India, many applicants change jobs thinking that under AC 21 (American Competitiveness in the Twenty-first Century Act of 2000) jobs can be ported to a new employer without any problem. This decision to change a job should be carefully taken depending upon the circumstances of each case.
I-140 pending: If the I-140 and I-485 have been filed concurrently and the I-140 has not been approved yet, the petitioner for I-485 may have received Employment Authorization from the USCIS. In these circumstances, the applicant may wish to change his/ her job and port it to a new employer under the provisions of AC 21. This decision should be carefully taken if the I-140 is pending and the I-485 is also pending for less than 6 months time. It might be risky for the applicant to do so. The new employer should be willing to file with the USCIS its intent to continue the adjudication of the I-140 petition and the job should be of same or similar occupation. Again, if the old employer withdraws its I-140 or for some reason, like ability to pay or other reasons, the I-140 is denied, then the underlying I-485 will also be denied. Therefore, the decision to change jobs under these circumstances might be too risky and care should be taken before taking a decision under these circumstances.
I-140 approved, but I-485 pending: There can be circumstances when the I-140 has been approved, but the I-485 is pending. I-485 might be pending for a period of time for less than 6 months or more than 6 months or more. The decision to change job when the I-140 has been approved, but the I-485 is pending for less than 6 months, and the applicant wants to change the job because he or she has in his or her possession a work authorization or an EAD card might be risky. The reason is if I-140 is denied and I-485 is pending for less than 6 months or more, then the underlying I-485 will also be denied. Other circumstances may be when the employer finds out that the employee has changed jobs or is changing job to a new employer, then if the I-140 petition is withdrawn by the employer and the I-485 is NOT pending for 6 months or more, then the USCIS will automatically deny the I-485 without even giving a Request for Evidence or a Notice of Intent to Deny if the I-140 has been revoked or canceled by the USCIS.
There can be another circumstance where the I-140 has been approved and the I-485 is pending for 6 months or more. The applicant for adjustment of status has received the work authorization or the EAD card from the USCIS. The applicant sees that it is a long way to green card as the visa number may not be available for a long time. The applicant wants to change job. The applicant also has a valid H-1 on which he is working with the employer who has filed for I-140 and the same has been approved. What should the candidate do in these circumstances? Should he transfer his H-1 and move to a new employer? Should he just move on to the new employer based on his work authorization as he might be getting more salary if he uses his EAD card then transferring on his H-1?
Can the employer withdraw his I-140 petition? Will this effect his adjustment application as the underlying I-140 has been withdrawn or revoked by the USCIS when the I-485 has been pending for 6 months or more?
Section 106(c) of AC21, (American Competitiveness in the Twenty-first Century Act of 2000) provides that if the employer withdraws the I-140 on or after the date that the form I-485 has been pending 180 days, the approved form I-140 shall remain valid. If as of the date of revocation of I-140, I-485 was pending for more than 180 days, then the approved I-140 should remain valid for the purpose of adjustment of status application and the form I-485 should not be denied. However, the applicant for I-485 should furnish an offer of new employment with the new employer which should be in same or similar occupation.
Again, in pursuant to 8 CFR 103.2(b)(16)(i), if the I-140 is withdrawn, and the alien has not submitted evidence of a new qualified offer of employment, the adjudicating officer must issue a Notice of Intent to Deny the pending I-485. The Yates Memo of May 12, 2005 clearly summarizes the above provisions and there has been no change in the Memos after that on the above issues. The underlying principle is that the alien applicant must be able to show that there is a new valid qualified offer of employment at the time the I-485 is adjudicated.
So many cases have been denied outright just because the I-140 was withdrawn and revoked and the candidate did not submit a new qualified offer of employment. The USCIS should in pursuant to the above regulation issue a NOID before denying the case. It is always advisable under these circumstances that the applicant should continue his employment under H-1 if possible and if he or she has one available even when the I-485 is pending for 6 months or more and the applicant is porting his job. It is always better to keep the options open.
There is no one simple answer to each of the questions. Each applicant’s circumstances should be carefully analyzed to come to an answer and before deciding what to do in each particular case.
The above views are of the author’s and should not be relied on without consulting one’s own legal advisor.
Mahesh Bajoria is an attorney practicing law in San Jose, California. He can be reached by email at firstname.lastname@example.org.