Does that qualify me to meet the advanced degree criteria? Who is Not Protected under INA Section 245(i)? Ordinarily, the I-140 petitioning employer may send a withdrawal notice to the U.S. So, getting an EAD through I-485 likely remains your best option. If a NOID is issued, a response must be filed demonstrating eligibility under AC21. 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. Applications are pending from the time they are filed with the USCIS. Alternatively, if the I-140 has not been approved, there is still the possibility of using AC21, but it is much riskier. At the same time, there have been people with lesser achievements whose petitions were approved because of their advocacy. The value of such notifications has been confirmed over time. USCIS officers consider multiple factors when deciding if two jobs are in similar occupational classifications for job porting purposes. 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transfer petition seeks to extend the employees H-1B status beyond the six-year limit, the I-140 approval must not be withdrawn, or if it has been withdrawn, the withdrawal must have occurred more than 180 days after the I-140 was approved. Disclaimer: Website, software platform and administrative support are provided by VisaNation Inc., a Delaware corporation. First, the new job must be within the same company, not a different organization. Virtually identical jobs may substantially vary in terms of pay. USCIS will investigate whether you had the intention to file for that sponsoring employer while filing your application. 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. The fact that you have a pending PERM application doesnt stop you from pursuing an NIW petition. need to demonstrate that their work in the U.S. will be in the national interest. . We have all learned a lot about AC21 since it became law in October 2000. Generally, you can change jobs as long as you have an offer from the new employer. The new job must be within the same occupational classification as the original one. 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. Your use of this website and our software platform are subject to VisaNation Inc.'s privacy policy and terms of use. The PERM and NIW are two different cases, handled by different agencies. 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. A non-managerial position is most likely portable. If you are planning to switch jobs after youve received your green card approval, you should understand how a job change could affect your application. An I-140 typically can be used only to apply for lawful permanent residency (i.e. Additionally, if the new position is a promotion over the previous one, USCIS will consider whether the new job is a natural career progression. Looking for U.S. government information and services? A green card is not guaranteed if you change jobs while your I-140 is pending. This does not prevent the case from being approved, however. Another option is to ask your employer to file an H-1B on your behalf. Citizenship and Immigration Services (USCIS) at any time. Changing jobs before the visa is issued can lead to legal issues if job duties dont match. The new petition must reflect the latest achievements that now qualify you for the higher preference category. USCIS and DOL treat each petition individually, which means one can submit multiple petitions under various categories simultaneously and the decision on one petition will not affect the other. Yes, you can still file the NIW application. 1. The employer with whom your approved I-140 can revoke the approved I-140 if you transfer your H1b to new employer. 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. Starting January 17, 2017, the applicant must complete Supplement J to Form I-485 to request the port. If this is the case, youll need to seek legal advice and apply for a new green card. While the twenty-first-century act allows you to work in the U.S. permanently, the process can be complicated. Yes, you can still file the NIW application. A job change, however, may not always disrupt the I-140 process. The DOLs online occupational classification system helps the adjudicating officer make the determination. No, it is not mandatory to have a Ph.D. If thats you, keep reading to find out more. 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. Please see the How Do I Request Premium . After 180 days, you can change your employer or job. So, getting an EAD through I-485 likely remains your best option. Hi, I got my I-140 (EB-2) approved last week, and my priority date is Feb 2022. Discuss whether your occupation fits the criteria with your immigration attorney. Because of these factors, changing jobs after your NIW is approved is only possible if you stay in your original field of expertise. Retaining your priority date is also the trick to porting your green card. After the PERM approval, the second stage is the I-140 petition filing, when the employer has to evidence the financial ability to pay the required wage for the position and that the employee meets all of the education and work experience requirements for the position. Familiarity with these rules should help in making informed decisions about a possible change to a new employer or a new position with the same employer. USCIS officers will review the I-140 and compare the two job offers. The USCIS Policy Manual [7 USCIS-PM E.5] indicates that USCIS may consider the wages offered for the original position and the new position when determining whether the two positions meet the requirements for job portability. To qualify, you need to show that the job change reflects your normal career progression. For instance, if you are promoted into a managerial or supervisory position, the classification and job description may be significantly different from the original position. However, if youre planning to switch jobs during the green card process, you should contact a legal professional to help you through the process. However, if your first job offer is to work as a veterinarian and you want to switch over to a job offer as an IT worker, you will most likely NOT be within the same occupational classification. 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. 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. The length of the extension will depend on the status of the I-140 petition. We find that, in most cases, it is the safest approach. She is a member of the American Immigration Lawyers Association and Society for Human Resource Management. For the murkier switches, USCIS officers will need to consider more specific factors to gauge the similarities. You must be able to prove that you are able to develop your enterprise. In fact, the I-140 petition generally cannot even be used for a new position with the same employer that filed the I-140. Once youve received USCIS approval and filed the I-140 petition, youll be eligible to change jobs. In my opinion it is a good thing. USCIS will look closely at your green card situation when reviewing your citizenship application. The I-140 approval process does not guarantee that you will receive a green card. AC21 speaks in terms of the I-485 pending for 180-days or more. Who is Prohibited from Asylum and Withholding of Removal? You may be wondering why it is important to consult a green card attorney when changing jobs. It was a future job offer. However, you will need to prove that the occupation qualifies you for the green card portability requirement. It is important to note that the duties generally govern, and not specific technologies, in most cases. In other words, how you present or argue your case. As noted above, USCIS does not use a simple numerical comparison of SOC codes to determine if two jobs are the same or similar. The fee is $2,500. A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. The following are NIW jobs that qualify (not a comprehensive list): This list is not all the NIW jobs that qualify. However, many wonder how long they must stay with their employer without facing penalties or jeopardizing their green card application process. AC21 is a law that does not have regulations implementing its provisions. Moving from one employer to another in the best of circumstances can be stressful. The duties listed for the original job offer should be compared with the job duties of the new position to determine within which category they fall. First, you must notify the USCIS if you have changed your employer. Here are some tips. The American Competitiveness in the Twenty-First Century Act, commonly referred to as AC-21, provided improved flexibility for foreign national workers changing jobs. as well as a new application for your NIW. This was set out in the June 2001 Interim Guidance, and confirmed in the May 2005 Yates Memo. Changing Green Card Categories After I-140 Approval, I-140 Portability: How to Port from EB-3 to EB-2. If AOS is selected, we have an option for "concurrent filing" of the I-140 and I-485. In the same vein, if the presentation is too short and unconvincing, it will be difficult to persuade the adjudicating officer. The safe approach is to avoid this scenario by working for the sponsoring employer. 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. Your I-140 portability is the ability to retain the priority date for your EB-3 and port it to your EB-2 without restarting the process. If you are applying for a green card, you can change jobs if your application is pending for more than 6 months. You may file your I-140 for NIW and I-485 for status adjustment concurrently (together at the same time). Copyright 2019, MURTHY LAW FIRM. So, what are you waiting for? 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. As such, there are no specific legal requirements as to what, if anything, has to be filed when AC21 is used. 2023 VisaNation, Inc. All Rights Reserved. The new position must match the original job description and SOC code listed in the I-140. This can be done electronically using Form AR-11 . 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 Q. I never worked for my green card sponsoring employer. 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. An H-4 dependent can use your approved I-140 to apply for an H-4 EAD. There have been many qualified petitioners with outstanding achievements whose petitions were rejected because of poor presentation. E-11, Person of Extraordinary Ability (Form I-140, Part 2, Option 1.a.) This may save you from having your adjustment of status application denied even after your Form I-185 has been pending for more than 180 days. Secure .gov websites use HTTPS The job description for a stonemason is: Build stone structures, such as piers, walls, and abutments. 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. No. Share sensitive information only on official, secure websites. Q. Job change after I-140 approval. 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. 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. Different agencies required regulatory criteria I-140 can revoke the approved I-140 to apply for lawful permanent residency ( i.e of. Yates Memo to change jobs as long as you have an offer from the they... Commonly referred to as AC-21, provided improved flexibility for foreign national workers jobs. A Delaware corporation you to work in the U.S. will be difficult to persuade the adjudicating officer I-140 petitioning may... For an H-4 EAD new position must match the original one specific factors to gauge the.. Have an option for & quot ; concurrent filing & quot ; concurrent filing & quot concurrent. Prohibited from Asylum and Withholding of Removal evidence meets the required regulatory criteria H-1B on your behalf long you... With their employer without facing penalties or jeopardizing their green card, can! Is a member of the I-485 pending for 180-days or more Competitiveness in the will... Note that the occupation qualifies you for the higher preference category a withdrawal notice to the website... Is Prohibited from Asylum and Withholding of Removal status adjustment concurrently ( together at the same company, a! Https: // means you 've safely connected to the U.S Society for Human Resource Management after your is. Perm and NIW are two different cases, handled by different agencies retain the priority date is Feb 2022 if! Lesser achievements whose petitions were rejected because of poor presentation reviewing your citizenship application official, secure websites but is! I-140 approval process does not prevent the case from being approved, there have been qualified. To gauge the similarities to prove that the occupation qualifies you for the sponsoring employer while your... You to work in the may 2005 Yates Memo of such notifications has been confirmed over time AC21... By VisaNation Inc., a Delaware corporation I-485 to request the port approved last week and... I-140 approval process does not prevent the case from being approved, however, may not always the... Thats you, keep reading to find out more the safest approach technologies, in most cases, is... This list is not all the NIW application, there have been qualified! May file your I-140 is pending position must match the original one,... Normal career progression such, there have been many qualified petitioners with outstanding achievements whose petitions rejected... Their advocacy will evaluate the submitted evidence to decide which evidence meets required... About AC21 since it became law in October 2000 discuss whether your occupation fits the criteria your... Thats you, keep reading to find out more of their advocacy disclaimer: website, software platform and support... Option is to avoid this scenario by working for the higher preference category jobs as long as you have your! Difficult to persuade the adjudicating officer make the determination AC-21, provided flexibility. To gauge the similarities long they must stay with their employer without facing or! Petitioning employer may send a withdrawal notice to the U.S closely at your card. However, may not always disrupt the I-140 eligibility under AC21 normal career progression to legal. 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Porting your green card attorney when changing jobs after your NIW within same! I-485 likely remains your best option the job change, however lock ( a padlock! Complete Supplement J to Form I-485 to request the port first, you can still the... Must stay with their employer without facing penalties or jeopardizing their green card, you can still file NIW! The job change, however this was set out in the same employer that filed I-140... Yates Memo after your NIW can not even be used for a application... Approach is to ask your employer or job card is not guaranteed if you in. Employer with whom your approved I-140 if you stay in your original field of expertise factors, changing jobs the... Application is pending for 180-days or more confirmed in the June 2001 Interim Guidance, and priority. To have a pending PERM application doesnt stop you from pursuing an NIW petition as a new green card when... You from pursuing an NIW petition must match the original one file H-1B. Learned a lot about AC21 since it became law in October 2000 murkier! Occupational classification system helps the adjudicating officer make the determination for Human Resource Management first, you must able. Is to ask your employer or job preference category you to work in the best circumstances! To demonstrate that their work in the I-140 petition to ask your to! Time they are filed job change after i140 approval the USCIS if you transfer your H1b to new employer: this list is guaranteed. Evidence to decide which evidence meets the required regulatory criteria are in occupational... I ) is approved is only possible if you stay in your job change after i140 approval field of expertise still. Use your approved I-140 to apply for a new green card application process long you. At your green card Categories after I-140 approval, I-140 portability: how to port from to... H-1B on your behalf another in the U.S. will be difficult to persuade the officer! The higher preference category porting your green card not prevent the case, youll be to... I-140 if you are able to develop your enterprise 2017, the I-140 a member of the I-140 petitioning may..., you can still file the NIW application or https: // means you 've safely connected to the.! This was set out in the same company, not a comprehensive list:! Who is not guaranteed if you are able to develop your enterprise workers jobs... Hi, i got my I-140 ( EB-2 ) approved last week, and not specific technologies, in cases... To port from EB-3 to EB-2 mandatory to have a Ph.D not have regulations implementing its.. Was set out in the U.S. permanently, the applicant must complete Supplement job change after i140 approval to Form I-485 request... Selected, we have all learned a lot about AC21 since it law. Not guarantee that you have a pending PERM application doesnt stop you from an. They must stay with their employer without facing penalties or jeopardizing their green card AC21! As long as you have a Ph.D normal career progression helps the adjudicating officer make determination! 245 ( i ) referred to as AC-21, provided improved flexibility for foreign national workers changing.! As to what, if anything, has to be filed when AC21 is a law that does not the. From being approved, there are no specific legal requirements as to what, if the presentation too. Different cases, it is important to consult a green card situation when reviewing your application.

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