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. The government recommends that you change your employer only if you have changed your job in good faith. While it is not impossible, there are few people who would be able to convince the USCIS of their ability to develop enterprises in different fields that will have a substantial positive impact on the U.S. The new job must be in the same or similar occupational field as the previous job in the original I-140 petition, and the employer must have the actual intent to employ the beneficiary after their adjustment of status is completed. Although the NIW requirements, as in the. The best way to ensure that you are on the best path to your green card is to consult an immigration attorney. Family Immigration Attorney Located In Fairfax County, Rules Governing I-485 Portability to a New Employer under AC21, The Impact of Employment-Based Adjustment of Status Filing on H-1 or L-1 Status, Consular Processing vs. 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. The second option is to submit your I-485 within the U.S., which does not require you to travel abroad to complete the LPR process. This means the I-140 and the I-485 may be filed at the same time, or the I-140 may be filed first; the I-485 may be filed while the I-140 is still pending. No. Align structures or plate sections to assemble boiler frame tanks or vats, following blueprints. Withdrawal/Revocation of I-140 If an I-140 is withdrawn or revoked before 180 days, then the I-140 petition is no longer valid and cannot be ported to a new employer, even after 180 days under the AC-21 rule. If I change jobs, does the new employer have to pay the wage stated on the labor certification? Alternatively, an advanced degree like a Ph.D. or a masters degree would also allow you to qualify. This field is for validation purposes and should be left unchanged. The SOC system covers all occupations where work is performed for pay or for profit. Additionally, if the new position is a promotion over the previous one, USCIS will consider whether the new job is a natural career progression. While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. In other words, how you present or argue your case. However, the old and new job offers must both be in the same or similar occupational classification for the AC21 job portability to apply. Because of these factors, changing jobs after your NIW is approved is only possible if you stay in your original field of expertise. There could be a number of reasons USCIS denied your National Interest Waiver request, including: If your request is denied by the USCIS, you may be able to appeal the decision with help from your immigration representative. The DOL uses whats known as the Standard Occupational Classification to properly group and classify jobs. Now, there is often no reason to revoke an I-140. Those who wish to go around the. In fact, it is advantageous to do so because if one petition is denied, chances are the other one will be approved. Can I use AC21 to accept a promotion or transfer with my green card sponsor? The only implication is that there is a non-refundable fee attached to each petition you file. 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. 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. What green cards bypass the labor certification process and allow me to self-petition? If you meet the above two qualifications, you can use I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) to request a replacement of the job offer identified in Form I-140 with your new job offer. If you have a pending Form I-485, Application to Register Permanent Residence or Adjust Status based on employment, you may be able to change the job or employer on which your Form I-140, Immigrant Petition for Alien Worker, is based as long as the new job offer is in the same or a similar occupational classification as the job offer for which the Form I-140 petition was filed. All Rights Reserved. If the H-1B transfer petition seeks to extend the employees H-1B status beyond the six-year limit, the I-140 approval must not be withdrawn, or if it has been withdrawn, the withdrawal must have occurred more than 180 days after the I-140 was approved. A non-managerial position is most likely portable. Secure .gov websites use HTTPS 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. The original I-140 would have identified an SOC code for your first job offer, and USCIS officers will compare that SOC code to the SOC code for your new job offer. If you do so, you must apply abroad through the U.S. Embassy or the Consulate of your country of origin. This priority date determines where the employee stands in line for their green card. And how do I continue to work lawfully while the petition is pending? First, the new job must be within the same company, not a different organization. Youll need to show that your new job is a match for the position on your petition. Speak with your green card attorney before making any changes and evaluate how long you should wait before changing employers. If my I-140 for an NIW is approved, when can I file I-485 to adjust my status? Adjustment of Status, Eligibility to File an Adjustment of Status (AOS), Applying For An EAD (Employment Authorization Document), Eligibility to Apply for an Employment Authorization Document (EAD), Employed Without an Employment Authorization Document, FAQ for Employment Authorization Documents, Interim Employment Authorization Document, Requirements to Claim the Benefits under Section 245(i). The PERM and NIW are two different cases, handled by different agencies. Often, it is best to file a new green card case as a backup, even if it is potentially possible to pursue a pending green card case. Additionally, the wage is relevant to demonstrating that the individual will be self-supporting and will not become a public charge.. However, there is no specific rule for matching any particular order of digits in two SOC codes. However, USCIS will consider evidence that shows whether the new position makes you primarily responsible for managing the same or similar functions of the original position. But if you are not sure of this, it is recommended that you contact an immigration expert. There arent particular types of work that are automatically considered to be in the national interest. Included in our work on the case is a notification of the use of AC21, along with proof that the case qualifies under the AC21 requirements. Therefore, there is no legal requirement to work for the sponsor at the time of filing the labor certification (LC), or even while the I-140 or I-485 is pending. As long as your new job is identical or very similar to the job that you used for your NIW, you should be able to transfer with the help of an immigration attorney. On the whole, most people who change jobs after National Interest Waiver approval do not encounter difficulties provided that they stay within their field. The only stipulation is that you must submit a new Form I-140 or labor certification application. The DOL categories are generally fairly broad. In any case, you should consult a green card attorney in these types of dilemmas. Can I still file an EB-2 NIW? You can find this information in the DOL Occupational Employment Statistics database. AC21 does not require that one leave the sponsoring employer. However, even if the online case status is withdrawn, as long as your 180 days have passed and there is no element of fraud or misrepresentation suspected in your case, your I-140 can remain valid. 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. 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). This will still make your adjustment application valid. 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. Do I need to file the PERM again or just the H1B Amendment is good. Can I Change Jobs While Waiting For My Green Card 21 Sep, 2020 Post a Comment . Answer 2. An added benefit of waiting 180 days after I-140 approval is the ability of an H-4 spouse to continue to obtain H-4 EADs on the basis of the approved I-140 petition, even if the I-140 has been withdrawn or the employer goes out of business after 180 days. If thats you, keep reading to find out more. Q. 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. The SOC system is organized using codes, which generally consist of six numerical digits. An H-4 dependent can use your approved I-140 to apply for an H-4 EAD. While some applicants may not have a choice other than to wait, others may be able to use the portability rule to their advantage. 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 employees country of birth, priority date, and preference category. An approved I-140 is usually employer- and job-specific. Thus, filing a case as a future job offer, without working for the sponsor, then using AC21 to move to an alternative position, can raise questions of intent and potential fraud or misrepresentation. A skilled immigration lawyer like Herman Legal Group can help you navigate the green card application process without any issues. Can I Retain My Priority Date After I-140 Withdrawal? How USCIS Determines Same or Similar Occupational Classifications for Job Portability Under AC21. Since there is no particular job or talent that definitively determines national importance, it is then left to every petitioner to prove their eligibility based on what they possess. You may request to port your job offer using the Form I-485, Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j). FYI Once I-140 is approved from current employer wait till 6 months after approval date and then you can plan to move to different company or stay if you want in your current company.After 6 months even if the company revokes it there is no effect to you and you can use that approval to extend your h1b visa in future. It is an issue of significant importance to foreign national workers. As noted above, once the I-140 is approved, the USCIS will grant a request for priority date retention for any other I-140 petition filed on behalf of the same beneficiary. Can I Use the Approved I-140 to File an H-1B with a New Employer? For the murkier switches, USCIS officers will need to consider more specific factors to gauge the similarities. 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. 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. However, gaining citizenship later will be difficult because of the problematic job change. If I change jobs, does my sponsoring employer have to withdraw my I-140 or inform the USCIS? This is why you must be sure to do your due diligence and let your case strike the right balance. 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. Will that work? In that case, you may be eligible to change from an EB-3 to EB-2 green card and expedite your green card application process via the portability rule. Q. A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. In reviewing two positions within the same broad occupational classification, USCIS will consider factors such as the similarity of the duties, experience, or areas of study associated with each position. How Do I Prevent Discrimination as an Employer? 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. 2. When your I-140 petition is approved, your chances of approval based upon portability are better. Home > Blog > Employment Based Immigration. This was explained in a June 2001 initial Interim Guidance Memo and reaffirmed in the May 2005 Yates Memo. The employer can always withdraw or request to revoke the I-140 petition. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers. It is important to note that physicians must work in their field in an underserved area for the first five years of their stay under EB-2 status in order to qualify for an NIW. It is therefore the day that the case actually was received by the USCIS that governs; not the date that the USCIS generated the receipt notice. Moving from one employer to another in the best of circumstances can be stressful. Learn More, The Murthy Law Firm can conveniently and efficiently consult and/or represent clients located anywhere in the United States or abroad on U.S. immigration matters. First, USCIS mails the paper Approval Notice (I-797) to your employer and attorney. This is where the 180-day window after I-140 approval can become important. as well as a new application for your NIW. However, the timing of the withdrawal will determine whether USCIS will revoke the I-140 or not. If this is the route that you wish to take, it is highly recommended that you work very closely alongside an immigration attorney to make sure that your case is waterproof. While the I-485 may take several months or even years before a decision depending on your priority date, the I-765 can be processed within a few months allowing you to continue using it to work or even seek employment. [47]-2022: The first two digits, 47 represent the major group, which includes all construction and extraction occupations. If you have a pending Form I-485, Application to Register Permanent Residence or Adjust Status based on employment, you may be able to change the job or employer on which your Form I-140, Immigrant Petition for Alien Worker, is based as long as the new job offer is in the same or a similar occupational classification as the job offer for which the Form I-140 petition was filed. Before you can change your job after i-140 approval, youll need to meet certain criteria. USCIS officers will review the I-140 and compare the two job offers. If you can prove that your new career is of national importance and you have consistently advanced your chosen endeavor, you shouldnt have a problem regarding that during your citizenship application. The best proof that a job offer is valid, however, is working for the sponsor. Discuss whether your occupation fits the criteria with your immigration attorney. 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. In our experience, yes. This applies even if the petitioning employer withdraws the approved I-140. Consult with your green card attorney to ensure the change will not affect your application. In my opinion it is a good thing. This may grant you an extension beyond the maximum six-year period of stay. . Citizenship & Immigration Service. In addition, the employer must run another recruiting period. In fact, the I-140 petition generally cannot even be used for a new position with the same employer that filed the I-140. Yes, you may change employers after your NIW has been approved. It has been the longstanding practice of The Anwari Law Firm to notify the USCIS regarding the use of AC21. The priority date is the date the PERM labor certification is filed, or for schedule A workers, the date the I-140 petition is filed. Getting an EB-2 NIW is a delicate process. My new job has a different title, but the same basic duties as the job described in the labor certification. This will help to ensure USCIS has the most accurate records of your case. How do I exercise the portability provisions? In other words, once an I-140 petition has been approved for 180 days, it remains valid for purposes of continued H-1B extensions beyond the six-year limit even if the I-140 is withdrawn or the employer goes out of business after 180 days. Who is Eligible for Withholding of Removal? You should do this before filing your I-140. 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. With a pending or approved I-140, you can easily extend your H-1B status beyond the six-year maximum and be exempt from cap-subject H-1B filing. If you can afford it, you can file as many petitions as you want. Learn How to Change Jobs After NIW Approval. For example, USCIS may become suspicious if you work as a medical professional, and after receiving your green card you start working as an account. If this is the case, youll need to seek legal advice and apply for a new green card. Work involves use of hand and power tools, plumb bobs, levels, wedges, dogs, or turnbuckles. Q. If the new position is in the same field and a similar occupation it will not present a problem, and there will be no need to do a new PERM (if appl. 47-202[2]: The sixth digit, 2 represents the detailed occupation, which only includes stonemasons. We have seen several cases of people who want to leave their current job to work in an entirely different field. . We have not found it to generate higher rates of interviews or requests for evidence (RFEs). What is important is that you continue to satisfy the. 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. Legal services are provided by VisaNation Law Group PLLC, a Florida professional limited liability company. The value of such notifications has been confirmed over time. Your petitioning employer may decide to send a withdrawal notice to USCIS, especially if you did not part ways on good terms. All Rights Reserved, In a consultation, an attorney can provide answers to your questions, or you may engage our firm for your immigration process. Even if your I-140 is approved, changing jobs before you receive your visa can lead to problems. USCIS officers are instructed to consider additional factors, such as: The duties of both positions The process will move smoothly from your current employer to the new one. Direct cleaning of boilers and boiler furnaces. Looking for U.S. government information and services? The only implication is that there is a non-refundable fee attached to each petition you file. Q. Our strategy for new clients with AC21 cases is to take over representation in the I-485 and act as the attorney for the remainder of the case. Second, they will evaluate the submitted evidence together to make their final decision based on the total requirements for NIW. 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. 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