In order to complete the process for permanent resident (green card) status, an adjustment of status is needed. Submitted a completed I-485 Adjustment of Status is the last step when one is a obtaining a green card. The alien filing an adjustment of status should be physically present in the U.S., and the petition is intended to adjust the applicant’s status from a nonimmigrant to attain an immigrant or permanent resident status. There are certain criteria a person should meet to qualify to file an adjustment of status application.
No “Change of Circumstance”
There shouldn’t be any “change of circumstance” once the adjustment of status has been filed. For example, an individual may not change their job in the first 180 days when the application for adjust of status has been filed.
Understanding the Adjustment of Status Portability Rule
After the first 180 days immediately following the submission of form I-485, an individual may be able utilize the “portability rule” during the adjustment of status process. The current law stipulates that, in case, the adjustment of status application filed by an individual has remained pending for 180 days, and has an approved I-140 Petition for Immigrant Worker, then they may be permitted to leave the sponsoring employer in order to work for a different employer. However, new employment must still remain in the “same or similar position.”
Similarly, if I-485 of an alien has remained pending for over 180 days, and the I-140 hasn’t been approved, then the applicant may be permitted to change employers, provided that they are taking up a similar or same position with their new employer. It is important to remember that determining whether a position is “same or similar” actually involves legal analysis and should not be determined without counsel from a licensed and qualified legal professional.
USCIS Clarification for “Changing Employers”
USCIS clarifies that when an applicant changes employers, it may not necessarily imply that an alien beneficiary should work for the I-140 sponsoring employer in those 180 days before they leave for a same or similar position. Currently, there is no requirement that an alien should work for sponsoring employer throughout the period of 180 days when their adjustment of the status application remains pending.
In light of this, it is recommended that an I-140 sponsoring employer make sure they maintain the position that has been offered to the alien for no less than 180 days following the initial submission of the pending I-485.
Understanding the Risks of Changing Employers
It is important for applicants to remember that changing employers from the initial sponsoring employer after the 180 day does carry some risks. The same applies if the applicant never worked for the original sponsoring employer. For example, in the event that the employer decides to withdraw the petition for immigration, there is a possibility that the adjustment could be denied.
Additionally, should the USCIS request for more evidence to be produced by the original employer, it is likely that that employer whom the alien no longer works for fails to respond. This could lead to denial of both the I-140 and the I-485.
In short – any attempt to change an employer whether before or after attaining approval of employer-sponsored immigrant petition, though possible, it could create conflicts of interest. This is especially for the attorney who has been retained to handle the petition by original sponsoring company.
Work With Your Own Attorney to Lower Risk
Should you find yourself in such a situation where you are considering, or have changed employment after the 180 days, you should seriously consider obtaining your own legal representation. It is very possible that the attorney retained by the original sponsoring company will not give you their full attention to your adjustment application case. This could be because your interests are no longer aligned with the original sponsoring employer.
In case you are seeking to change employers, and you want to mitigate/lower potential risks, call Pride Immigration Law Firm PLLC. We are highly experienced in managing employement-based immigration cases and are qualified to manage your transition. Should there be negative affects such as a request for additional evidence from USCIS, we are able to represent your best interests and respond in a timely fashion.
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To help our clients understand their options before making important decisions, we offer consultations at our office or via phone. If you are interested in learning more about how we can help you reach your goals, call our office or send us a message online to schedule your consultation.
Beeraj Patel, Esq.
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