Being sponsored by an employer for a green card is prospective in nature. What this means is that the future employer and employee are attesting that they have the intent to enter into the employer-employee relationship UPON approval of the I-485 (or upon receiving the immigrant visa and entering the US if one uses Consular Processing). However, in many cases, for one reason or another, an employee either finds or has to find a new position with a new employer. The question is then, what is the effect of that new employment on the process? As with all questions asked of a lawyer, the answer is “it depends”.
Change of Jobs during the Pendency of the Immigration Process
The biggest factor is timing. If the change in employment occurs during the actual labor certification process or prior to the I-140 being filed, then the process, most likely, needs to be started over. If the I-140 has been filed and is pending, there is a chance that the case could survive, however according to AC21, the law pertaining to this area, in order to get the benefits of being able to continue to use the sponsorship process once an employer change occurs one needs an approved I-140 for the previous position AND the I-485 needs to be pending for at least 6 months. Prior to this, porting is not supported.
If you are able to use the AC21 process what you need to show is that the new position is the “same or similar” to the old position. USCIS looks not just at the job title and the DOT codes, but also at the actual duties to make this determination. Every case is different and needs to be looked at individually to make this determination. A good rule of thumb is that at least 50% of the duties need to be the same in order for the jobs to be considered similar (this is not to say that this will work in every case, as there are other factors to look at, but it is a general rule).
Change of Jobs AFTER the receipt of Permanent Residence
The last scenario would be if a job change occurs AFTER the I-485 is approved. In this case the biggest issue that arises is one of fraud. If you switch positions as soon as you have your green card, or soon thereafter, it creates the appearance of fraud – that is, it appears that you had no intention of actual working for the employer that sponsored you, which is immigration fraud. You can try to show that in fact it was not fraud, but you need to be aware of the issue up front so you can get the documents you need PRIOR to the job switch. If the sponsoring employer asks you to leave for any reason, get it in writing. If a grant, etc. is cancelled leading to you loosing your job, get something in writing. It is also important to discuss the reasons you are switching position with your attorney to make sure USCIS will consider them sufficient.
One point to keep in mind is that, assuming you meet the qualification of AC21, as long as you have the new job offer in hand before the I-485 is approved, the new position will be controlling on the process and you do not have to worry about not working for the original employer. Again, the job offer needs to be in hand before the I-485 is approved.
p>The above only scratches the surface on these issues and, again, we urge you to discuss any specific scenario you find yourself in with your attorney. And please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.