Changing jobs – before and after green card approval

Initially, let’s consider the question of changing employer before filing for adjustment of status (AOS) or embarking on consular immigrant visa processing (CP). If the employee’s I-140 has not yet been approved, then making a change is very risky. A priority date does not become vested until the I-140 is approved. Once an I-140 is approved, however, the employee “owns” that priority date forever. This is true even if the petitioning employer revokes the I-140 petition. The employee may use this priority date with any future I-140, irrespective of the employer, the job, or the preference category. The employee will need a new PERM and I-140 from another sponsoring employer, but the employee can keep the old priority date.

There are some instances where an employer and employee will agree to part ways temporarily, but agree that they will work together as soon as the employee receives his or her green card. If both parties intend this in good faith, and it is a legitimate agreement, not just a subterfuge to help the employee get a green card, then it is an acceptable practice. The employer and employee bear the burden of proving their intent through credible evidence, however.

Let’s now move on to a situation where the employee has decided to pursue consular processing. In this case, the employee must remain in the specific job identified in the PERM application. The employee may not accept a different position, even with the same employer. AC21 portability does not apply to CP cases. On the other hand, CP generally takes less than six months to complete from the date of the I-140 approval, assuming visa numbers are current, so this isn’t a serious hardship in most cases.

For the AOS applicant, things are a bit different. After 180 days, an AOS applicant may change jobs and/or employers. The only restriction is that the new job must be in the same or similar occupational classification. This phrase is very broad and has been interpreted by the CIS as meaning essentially anything in the same field as the job described in the PERM application.

We have discussed the concept of “same or similar occupational classification” at great length in other articles and will not repeat that information here. It is sufficient to say that when someone reaches the AOS filing plus 180 day mark, they are free to change jobs and the CIS puts very few restrictions on their new employment.

The best practice for employees of consulting companies is for the employer to use “itinerant employee” language in the PERM. This allows the company to file using the headquarters address while the employee moves from job to job. If the employer has not done this, then AC21 portability can save the day as long as the employee continues to work for the sponsoring employer beyond the AOS filing plus 180 day mark.

The CIS has been surprisingly generous in their interpretation of the AC21 legislation. For example, the have held that EB1 multinational executives and managers are free to change jobs after 180 days – provided they remain in the same or similar occupational classification. By extension, we may take this to mean that the beneficiary of an EB1 outstanding research petition or an EB2 national interest waiver petition is also free to change jobs, provided they remain in the same or similar occupational classification.

The bigger issue that seems to confound both AOS and CP applicants is how long must they continue to work for their sponsoring employers after they become lawful permanent residents. Many years ago, the former INS had a rule that presumed fraud on the part of the employee if he or she changed employers within two years of becoming an lawful permanent resident (LPR). That rule was quietly abandoned almost twenty years ago. Unfortunately, not everyone seems to have gotten the word as it continues to pop up in Internet discussion forums today.

It is pretty clear that Congress settled this issue with the passage of the AC21 legislation. The legislative history of the I-140 portability provision makes it clear that Congress wanted to achieve parity between AOS and CP applicants. At that time, both AOS and CP applicants had to wait until an I-140 was approved before moving on to the next step. Historically, CP has rarely taken more than six months from I-140 approval until the issuance of an immigrant visa (assuming visa availability).

In passing this legislation, Congress implicitly recognized that CP applicants were free to change employers after becoming LPRs – as long as they acted in good faith during their processing. In other words, as long as they didn’t have fixed plans to change employers before going off to the visa interview, they were free to change jobs immediately upon return if circumstances changed. Changed circumstances might include a higher salary, better working conditions, or a better job opportunity.

By setting up a six month interval for AOS applicants (from the initial date of filing), Congress put them on par with CP applicants who could change jobs after approximately the same interval. It is safe to say that the six month interval is now the rule, at least insofar as there is a rule.

Since an applicant may change jobs after six months, it is absurd to assume that someone who gets very lucky and has AOS granted earlier than six months is somehow subject to a different rule. For this reason, it is clear that anyone who is an LPR may change jobs for any reason without fear of having their status revoked. The old two year rule was dead and buried long before passage of the AC21 legislation. The six month interval set forth by Congress, however, makes it clear that LPRs are free to change jobs at any time.

Of course, there is still the question of changing careers. Just because Congress permits a job change after six months does not mean that they intended to permit career changes after six months.

A person who immigrates on the basis of an I-140 does so riding on the back of a presumption that they are going to work in a field with a demonstrated shortage of qualified local workers. The Secretary of Labor is required to certify that their employment will not adversely affect the wages, working conditions, or rate of employment of US workers in the same field. If someone immigrates on the basis of this kind of certification, and immediately changes careers, that thwarts the whole rationale behind the labor certification process.

While new LPRs are not prohibited from changing careers, they must be extremely careful in doing so soon after immigrating. If there are changed conditions, such has unexpected high unemployment in the LPRs field, that is certainly a legitimate reason for changing careers. If there are other, unanticipated changes in circumstances, the LPR would be able to argue those changes as a legitimate reason for moving into a new career. Changing careers simply because the new field is more interesting or pays better, is not an acceptable reason.

There are no bright line tests as to how soon someone may change careers. Obviously, the longer the LPR waits, the easier it will be to justify the change. Offhand, a change within a year of immigrating, absent highly unusual circumstances, will always be suspect. A change more than five years after immigrating rarely if ever requires justification. For intervals in between, the LPR needs to think carefully about the reasons for the change and how he or she will justify the change to a CIS official who may have occasion to review the file later.

Courtesy – Global Immigration Partners, Inc.