Changing job from one employer to another can be a nerve-racking event, especially if you are a foreigner holding an approved I-140 petition.
But if you do have to change your job, it is necessary to know what may happen next.
The key points to know are to know intricate questions surrounding the status and timing of the I-140 petition.
Background on the I-140 Petition
The I-140 immigrant petition normally is the second important step within a three-step process for employees seeking a green card through an employment-based immigration case.
The journey begins with the PERM filing. In this step, the employer needs to prove that there is not readily available and qualified U.S. workers for the position.
Once the PERM application is approved, the second step is to file the I-140 petition. This step generally focuses on the proof of financial capability to meet the position’s required wage and the fulfillment of all educational and experiential requirements by the employee as listed in the PERM application.
The final chapter is normally the adjustment-of-status application (Form I-485) for those who are physically in the United States, or having consular processing for those who are abroad.
Can I Transfer the I-140 Petition to a New Employer or Job?
Typically, an approved I-140 belongs to a specific employer and job. It’s mostly for those who intended to pursue lawful permanent residency through employment from a particular employer.
In theory, even if it is just a change of job positions within the same company, it often requires the employer to file an entirely new PERM and I-140 petition for the employee.
There are exceptions, for example, the I-140 petition can remain valid with a new employer if the new employer is deemed a successor in interest to the original petitioner.
A common situation is that the previous employer underwent a restructure, or it was merged by another employer.
A second exception is that if the beneficiary satisfies the job portability requirements outlined in the
American Competitiveness in the Twenty First Century Act (AC21).
AC21 allows a person who has filed an I-485 application to move to a position that is in the “same or similar occupational classification” as the one set forth in the underlying PERM labor certification once the I-485 has been pending for at least 180 days.
The memorandum provides guidance to adjudicators on the meaning of “same or similar occupational classification” and how AC21 cases are to be evaluated.
Therefore, if the employee has an approved I-140 and has also filed for I-485. The employee can change job if his or her situation satisfies the requirement in AC21.
Can the Petitioner Revoke My Approved I-140?
Normally, the I-140 petitioning employer retains the power to withdrawal the approved I-14 from the U.S. Citizenship and Immigration Services (USCIS) at any time.
However, the situation changes after 180 days post-approval per AC21. Beyond this point, the USCIS will not revoke the I-140 solely based on the petitioner’s withdrawal request.
Should the withdrawal request surface within the initial 180-day period following I-140 approval, the USCIS will indeed revoke the greenlit I-140.
In such a scenario, the I-140 beneficiary retains the precious priority date, except when if there is a fraud, willful misrepresentation, which caused the I-140 to be revoked by the USCIS, or if the underlying labor certification is rendered invalid or revoked.
Can I Use the Current I-140 Approval to File an H1B with a New Employer?
As long as an approved I-140 remains valid, the employee is armed with the ability to be employed with any employer – even a new one.
This serves as the foundation for requesting an extension of H1B status, after the employee used up the standard 6-year limit.
To unlock this possibility, the approved I-140 must remain valid until the H1B petition obtains its approval.
If, as previously discussed, the petitioning employer retracts the I-140 within 180 days of its approval, then the revoked I-140 can no longer be used as the basis to extend H1-B status beyond the 6-year limit.
Can I Use the Priority Date from my I-140 after its Revocation?
The priority date, once the I-140 gains approval, is of great value. The USCIS generally honors a request for priority date retention, even if a new I-140 petition is filed on the employee’s behalf.
The only exception is when the I-140 is revoked due to fraud, misrepresentation, or a substantial error in approval – in such cases, priority date retention requests will not be honored.
Conclusion
Changing jobs or job roles can significantly impact a foreigner employee’s ability to leverage an approved I-140 petition. This is a subject of paramount importance for foreign national workers. It is essential that a foreigner employee pays attention to this matter, one can make informed choices when considering transitions to new employers or positions within the same organization.
