While many change their employers using the Employment Authorization Document (EAD), this is not the only way to make this change. Can I use AC21 portability? However, if your job offer is not in the same occupational classification as your current position, you will need to file for a new I-140 petition and PERM labor certification with the same broad occupational code. There's got to be an easier way of dealing with this, because I'm sure many people have changed their employer after their i-140 approval. You may be wondering why it is important to consult a green card attorney when changing jobs. No. The, PERM and NIW are two different cases, handled by different agencies. Many who have filed their I-485 applications have or will experience years of waiting time for visa number availability due to retrogression. Copyright 2019, MURTHY LAW FIRM. 47-0000Construction and Extraction Occupations, 47-2020Brick masons, Block masons, and Stonemasons, The skills, experience, education, training, licenses or certifications specifically required to perform each job, Any other relevant and credible evidence submitted by the applicant. Another option is to ask your employer to file an H-1B on your behalf. The best way to ensure that you are on the best path to your green card is to consult an immigration attorney. Can My Employer Revoke My I-140 After USCIS Approved It? The AC21 determination is governed by duties of the job rather than the job title, as job titles often differ between companies, even for very similar positions. The PERM and NIW are two different cases, handled by different agencies. At that point, many employers either will not respond or will withdraw the I-140 petition, risking the entire case. If a NOID is issued, a response must be filed demonstrating eligibility under AC21. 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. Legal services are provided by VisaNation Law Group PLLC, a Florida professional limited liability company. The AC21 law uses the terminology same or similar job classification. The Legacy INS June 2001 guidance refers us to the U.S. Department of Labor system of occupational classification as a guideline. Do I need to file the PERM again or just the H1B Amendment is good. You must be able to convince the USCIS that the United States would stand to benefit from waiving the PERM requirement as opposed to enforcing it. 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. Youre changing your position with your current employer. The new job is in the same or similar occupation. 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. Occupations are generally categorized based on the type of work performed. For example, the SOC code for a stonemason is 47-2022. Direct cleaning of boilers and boiler furnaces. This priority date determines where the employee stands in line for their green card. As long as an approved I-140 remains valid, the employee may use it with any (including a new) employer, as a basis to request an extension of H1B status beyond the standard 6-year maximum. How Do I Prevent Discrimination as an Employer? Contact us now for the best immigration services and get the ultimate peace of mind. Will that work? This page was not helpful because the content: E-3 Certain Specialty Occupation Professionals from Australia, H-1B Specialty Occupations and Fashion Models, Extension of Post Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations, Fee Increase for Certain H-1B and L-1 Petitions (Public Law 114-113), Employment Authorization for Certain H-4 Dependent Spouses, L-1A Intracompany Transferee Executive or Manager, L-1B Intracompany Transferee Specialized Knowledge, O-1 Individuals with Extraordinary Ability or Achievement, O Nonimmigrant Classifications: Question and Answers, P-1B Member of Internationally Recognized Entertainment Group, P-2 Performer or Group Performing under Reciprocal Exchange Program, P-3 Artist or Entertainer Part of a Culturally Unique Program, Employment-Based Immigration: First Preference EB-1, Employment-Based Immigration: Second Preference EB-2, Employment-Based Immigration: Third Preference EB-3, Employment-Based Immigration: Fourth Preference EB-4, Employment-Based Immigration: Fifth Preference EB-5, Immigrant Pathways for STEM Employment in the United States, Nonimmigrant Pathways for STEM Employment in the United States, WB Temporary Business Visitor under Visa Waiver Program, Automatic Employment Authorization Document (EAD) Extension, DHS Support of the Enforcement of Labor and Employment Laws, Employment Authorization in Compelling Circumstances, Options for Nonimmigrant Workers Following Termination of Employment, Form I-485, Application to Register Permanent Residence or Adjust Status, Form I-140, Immigrant Petition for Alien Worker, Form I-485, Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j), section 204(j) of the Immigration and Nationality Act (INA), Standard Occupational Classification (SOC), Occupational Employment Statistics Database, ETA Form 9089, Application for Permanent Employment Certification (PDF). An advanced degree simply means anything higher than a bachelors degree and does not mean you need a Ph.D. 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. So, getting an EAD through I-485 likely remains your best option. However, if you are changing jobs after National Interest Waiver approval, then you may encounter difficulties with proving that your new occupation is in the national interest. You need to work for five years in a medically underserved area in the U.S. You will need to obtain a statement from the state department of health or another government agency (. ) How USCIS Determines Same or Similar Occupational Classifications for Job Portability Under AC21. In fact, many successful NIW applicants apply without a Ph.D. VisaNation Law Group has helped many of their clients process and acquire their NIW green cards without a Ph.D. If the file contains documentation about the new job, the case should just continue being processed. If your presentation is too long and incoherent, the adjudicating officer may find it difficult to identify your merits and qualifications. This can be done electronically using Form AR-11 . One of the primary potential problems arises if an RFE is issued. Will my change of career affect my naturalization application? Be sure to indicate on the petition that you want to retain your priority date. 2023 VisaNation, Inc. All Rights Reserved. In addition, the employer must run another recruiting period. 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. To qualify, you need to show that the job change reflects your normal career progression. 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. Yes, you may change employers after your NIW has been approved. However, it can affect your naturalization application if your job history raises red flags with the immigration officer adjudicating your case. What do I have to do? Some employers may experience the loss of valuable employees; other employers, perhaps offering better employment terms and conditions, may find that they are able to hire needed foreign workers without having to sponsor their green cards. However, by following the steps of green card portability, you will not have to start the process from scratch. Does the new job have to be in the same geographic location? 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. The purpose of the SOC system is to organize occupational data and classify workers into distinct occupational categories. 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 you are primarily responsible for managing the same or similar functions of your original job or the work of persons whose jobs are in the same or similar occupational classification(s) as your original position. First, the new job must be within the same company, not a different organization. However, it functions as petitioning for a brand new green card in all other aspects. Not everyone who applies for an EB-2 green card is eligible for an NIW. Established in Matter of Dhanasar, the three-pronged test requires the following: Your immigration attorney will help you highlight how your endeavor helps benefit the United States, how working conditions will be improved for U.S. workers, immediate and long-term benefits, etc. 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. You will need to present proof, such as boarding passes and hotel reservations, as supporting evidence of time spent outside the United States. Even if your I-140 is approved, changing jobs before you receive your visa can lead to problems. If youve recently been approved for an employment-based green card petition, you may be wondering whether your new job will affect the portability of your green card. Due to the sensitive nature of changing jobs after green card approval, its essential to be aware of the possible repercussions. An I-140 typically can be used only to apply for lawful permanent residency (i.e. In the example in the Occupational Classifications section above, the 47 encompasses all construction and extraction occupations, which is a broad category and would not determine whether two jobs are similar. You could potentially save yourself years of waiting time. Examples include those who, in the process of waiting, have: Suppose you have experienced any of the above scenarios. If AOS is selected, we have an option for "concurrent filing" of the I-140 and I-485. You may also file. 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. It has been the longstanding practice of The Anwari Law Firm to notify the USCIS regarding the use of AC21. Answer (1 of 7): You can change your employer right after your I-140 got approved with current employer, but here is the point i suggest you to be with current employer for 180 days after your approval with them. To continue working legitimately while the petition is pending, you may file, Form I-765 for an employment authorization document. In labor certification substitution cases, the employer was required to revoke the previously approved I-140 for the original beneficiary in order to substitute a new beneficiary. If youve been approved for a green card, youll need to file a new Form I-140 application for the new job. On the bright side, by indicating on the new petition that you would like to retain the priority date of your original petition, you can avoid having to restart the priority date waiting time. Many employers do not withdraw I-140s upon employment termination. Can I still use portability? The Department of Labor (DOL) uses the Standard Occupational Classification (SOC) system to group and classify jobs and occupations. Therefore, before making a career change, consult a green card attorney. Similarly, a new I-140 petition is not required if the beneficiary meets the job portability requirements pursuant to the American Competitiveness in the Twenty First Century Act (AC21), as detailed in the MurthyDotCom NewsBrief, Final Policy on AC21 Same or Similar Job Requirement (07.Apr.2016). Who is Not Protected under INA Section 245(i)? My attorney suggested I needed to file H1B Amendment, since my current H1B is active till Dec 2023. There arent particular types of work that are automatically considered to be in the national interest. Citizenship and Immigration Services (USCIS) at any time. If you can afford it, you can file as many petitions as you want. During the green card application process for foreign national workers, it is possible to change jobs without affecting the processing of your application. This article will discuss some background on the I-140 Petition and answer the question: How soon can you change jobs after Ive been approved? Q. I am afraid that, if I change my job, my employer will try to harm my green card case. 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. The AC21 was drafted to help lessen the stress and make the process smoother. However, if youre changing jobs and your current job doesnt meet this criterion, you may not be eligible for portability. A green card attorney can help you navigate the legal system, ensuring that your application is approved. Now I want to apply for citizenship. Trackitt: Immigration on the App Store. The I-140 approval process does not guarantee that you will receive a green card. The employer does not control the I-485 application, since this is filed directly by the foreign national. This is true even if the I-140 has been approved for less than 180 days. If my I-140 for an NIW is approved, when can I file I-485 to adjust my status? Job change after I-140 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. Answer 2. You can change your employer right after your I-140 got approved with current employer, but here is the point i suggest you to be with current employer for 180 days after your approval with them. 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