If you do so, you must apply abroad through the U.S. Embassy or the Consulate of your country of origin. Yes, you may change employers after your NIW has been approved. 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. There are no forms, applications, or petitions to file. Q. I lost my job before the I-485 had been pending 180 days. Examples include those who, in the process of waiting, have: Suppose you have experienced any of the above scenarios. You must also keep in mind that the period starts right from the receipt date of I-485. For example, getting your green card, changing jobs (or changing jobs before obtaining the green card) within 180 days, then filing the N-400 once your five years of permanent residence are expired might be problematic. USCIS aims to determine in all cases whether a new position is in the same or similar occupational classification as the original job offer. Ivan had his NIW approved so that he could work as an architectural engineer in the U.S. During the green card application process for foreign national workers, it is possible to change jobs without affecting the processing of your application. Can My Spouse Apply for H-4 EAD With the Approved I-140? Depending on the circumstances, the USCIS may favor the new job over the former one. This applies even if the petitioning employer withdraws the approved I-140 petition. The DOLs online occupational classification system helps the adjudicating officer make the determination. 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. As discussed above, if the petitioning employer withdraws the I-140 within fewer than 180 days of approval, that revoked I-140 petition cannot be the basis to extend H1B status beyond the standard 6-year maximum timeframe that is permitted under the law. No. One of the primary potential problems arises if an RFE is issued. The fact that you have a pending PERM application doesnt stop you from pursuing an NIW petition. If you request to change jobs or employers under INA 204(j) while your Form I-140 is pending, we must approve your Form I-140 before we may approve your portability request. Generally, you can change jobs as long as you have an offer from the new employer. 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). I don't recommend it. This is why you must be sure to do your due diligence and let your case strike the right balance. Q. Job change after i-140 approval may affect green card portability depending on a few factors. Yes, you can change jobs after your I-140 is approved, but only after when you secure a new employer who will first file a new H-1B petition on your behalf, obtain a new period of 3 years (due to the fact that you'll have an approved I-140 from your first employer then) and then restart the whole "green card" PERM process anew with the filing of its own PERM and I-140. 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. If this is the case, youll need to seek legal advice and apply for a new green card. 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 employee's country of birth, priority date, and preference category. A non-managerial position is most likely portable. What are the risks? Not everyone who applies for an EB-2 green card is eligible for an NIW. No. A green card is not guaranteed if you change jobs while your I-140 is pending. I have a pending EB-2 PERM filed by my employer. As long as you follow certain rules, you can switch jobs while your I-140 is pending. In fact, it is advantageous to do so because if one petition is denied, chances are the other one will be approved. An approved I-140 petition remains valid, once the I-485 application has been pending for 180 days, even if the employer requests the revocation of the I-140 petition. Disclaimer: Website, software platform and administrative support are provided by VisaNation Inc., a Delaware corporation. Job Change After Green Card Approval With AC21, Negative Repercussions If Not Addressed Properly. You must keep your I-140 and other approval notices in a safe place. Citizenship and Immigration Services (USCIS) at any time. Even if the petitioner withdrew the I-140, you could still use it for an EAD as long as USCIS has not revoked it for misrepresentation or fraud. Changing jobs after a green card approval throws a wrench into an already complicated process. My new job has a different title, but the same basic duties as the job described in the labor certification. The purpose of the SOC system is to organize occupational data and classify workers into distinct occupational categories. This is a very difficult situation as you will not only need to prove that your new enterprise is in the national interest, but you will also need to prove that you are qualified to advance the enterprise. What is important is that you continue to satisfy the. AC21 speaks in terms of the I-485 pending for 180-days or more. These two green cards allow you to do those: Is EB-2 NIW eligible for premium processing? These promotions or job changes can be used to continue the same green card case under AC21, as long as the new job meets the same or similar job classification requirement. The 180-day portability rule provides that if a person has submitted an application for I-485 adjustment of status and has an I-140 visa petition approved under one of the Employment-Based preference categories, he can change jobs and still adjust his status as long as the new job is in the same or a similar occupation and his application for and schedule your comprehensive consultation today. Changing jobs before the visa is issued can lead to legal issues if job duties dont match. 2. While some applicants may not have a choice other than to wait, others may be able to use the portability rule to their advantage. It is typically between 3 to 9 months. You need the steady hand of an experienced immigration lawyer to navigate the rough waters of U.S. immigration law. Where no I-485 application has been filed, priority date retention occurs when the new employer files a new PERM labor certification on behalf of the employee and requests that the previous priority date be honored at the time of filing a new I-140 petition. As such, there are no specific legal requirements as to what, if anything, has to be filed when AC21 is used. The I-485 is based on the I-140, however, which is the employers filing. What is important is that you continue to satisfy the core requirements of the NIW, which includes advancing your proposed endeavor and that the proposed endeavor continues to be of national importance to the United States. In that situation, if the foreign national has not provided information about the new job, then the USCIS will issue a Notice of Intent to Deny (NOID). Whether you need to find the right documents to send to the USCIS or you are changing jobs after National Interest Waiver approval, their attorneys are ready to help you. 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. The approval of a green card is an exciting time for most immigrants. . No, it is not mandatory to have a Ph.D. Although the NIW requirements, as in the. In addition, the employer must run another recruiting period. She is a member of the American Immigration Lawyers Association and Society for Human Resource Management. However, when you completely change employers at any point in the green card process after filing the I-140, you must have that employer file a new I-140. The most recent set of criteria are: You must show that your enterprise will have a positive impact on the U.S. economy, workforce, society, or infrastructure. In any case, you should consult a green card attorney in these types of dilemmas. If USCIS approves the I-140, you can request to extend your H-1B status for up to three years. The only implication is that there is a non-refundable fee attached to each petition you file. First, USCIS mails the paper Approval Notice (I-797) to your employer and attorney. Be aware, however, that this system can sometimes be outdated, and IT jobs often lack up-to-date definitions. 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. 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. If the I-140 has been approved, then the concern is whether the employer will withdraw it before the 180-day point. 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 NIW allows you to self-petition for your EB-2 green card, meaning your status is not tied to a particular job or employer, unlike employer-sponsored categories. These changes include both raises and salary reductions. Typically, sponsoring employer must give you a job offer thats in the same or similar occupational classification as the one you have in the US. You can include information related to your educational background/skills, stories of success in your field, a plan of action for your endeavor, records showing past accomplishments, the interest of shareholders/customers/stakeholders, etc. Job change after I-140 approval. However, in certain cases, it is possible to change jobs after your I-140 has been approved. This applies even if the petitioning employer withdraws the approved I-140. Because no I-485 application has been filed, an H-1B transfer petition must be filed by the new employer in order for the employee to begin work. 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. Now, there is often no reason to revoke an I-140. However, if you are a medical professional, USCIS may start to suspect you are changing jobs without consulting an attorney first. The information contained on this website is for general information purposes only and is not a substitute for legal advice and does not create an attorney-client relationship. Inspect and repair boiler fittings, such as safety valves, regulators, automatic-control mechanisms, water columns, and auxiliary machines. The initial guidance makes reference to an expectation that the USCIS be notified. Not if it is pending. USCIS officers will review the I-140 and compare the two job offers. Alternatively, an advanced degree like a Ph.D. or a masters degree would also allow you to qualify. However, the old and new job offers must both be in the same or similar occupational classification for the AC21 job portability to apply. The, PERM and NIW are two different cases, handled by different agencies. USCIS will investigate whether you had the intention to file for that sponsoring employer while filing your application. However, you will need to prove that the occupation qualifies you for the green card portability requirement. EB-1A and EB-5 green cards do not require a job offer. We have handled many similar cases. In all green card cases (with the exception of the EB-1A), the first step is to acquire a PERM Labor Certification, which involves having your employer go through a recruiting process to make sure that no qualified U.S. workers are available for your position. Even if your I-140 is approved, changing jobs before you receive your visa can lead to problems. Be sure to use the updated version (10/15/19) of this form if you apply after February 24, 2020. To continue working legitimately while the petition is pending, you may file Form I-765 for an employment authorization document together with your I-485. What is Temporary Protected Status (TPS)? This expectation has been reiterated in later guidance memoranda. Evidence for this could be found in your educational background, past experience, or current progress in your enterprise. It also instructs officers to consider additional resources such as DOLs Bureau of Labor Statistics Occupational Outlook Handbook as well as the DOLs Bureau of Labor Statistics Occupational Employment Statistics Database as part of the analysis. Remember that an I-140 approval does not automatically guarantee your green card. The first thing is to determine if your job is in the national interest. USCIS officers may compare factors including, but not limited to: USCIS officers will consider 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. E-11, Person of Extraordinary Ability (Form I-140, Part 2, Option 1.a.) An approved I-140 petition remains valid, once the I-485 application has been pending for 180 days, even if the employer requests the revocation of the I-140 petition. Seesection 204(j) of the Immigration and Nationality Act (INA), which was enacted from section 106(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), for more information. together with your I-485. Legal services are subject to a separate attorney agreement between VisaNation Law Group PLLC (formerly SGM Law Group PLLC) and you. There are no geographic limitations on the new employment position under AC21. For this, the I-140 must remain valid until the H1B petition approval. people with advanced degrees or exceptional ability in their field) to bypass the PERM Labor Certification requirement and self-petition for a green card without an employer. The new petition must reflect the latest achievements that now qualify you for the higher preference category. We have seen several cases of people who want to leave their current job to work in an entirely different field. Microsoft MMLk51. Yes. If the new job is not, USCIS may refer to the DOL market expertise, which classifies workers into distinct occupational categories. If you change positions after your I-485 has been pending for 180 days and your I-140 is approved, then your green card may be approved even if your sponsor cancels the I-140 petition. To qualify, you need to show that the job change reflects your normal career progression. It gives additional flexibility to the individual and the employer to permit promotions or other job changes within the company. Therefore, they would not be able to change jobs outside their field after NIW approval. If you are in the process of obtaining an NIW for your EB-2 green card, then changing your job may require that you file a new I-140 as well as a new application for your NIW. Q. 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