One of the most frequent questions we are asked by employees is “when can I change jobs if my current employer has sponsored me for permanent residency?” With current back –logs in visa availability often employees have to wait in many years to receive their Green cards and do not want to jeopardize the process by changing employers.
Under the provisions of the American Competitiveness in the 21st Century Act (AC21), an employee may change jobs without giving up H-1B status, an approved labor certification, a pending I-140 (immigrant visa petition Portability can enable the employee to move to another job without requiring the applicant to start all over again
Under AC21, the approval of a Form I-140 employment-based immigrant petition shall remain valid when an alien changes jobs, if:
- A form I-485 adjustment application based on the Form I140 Petition for Alien Worker has been filed and remained unadjudicated for 180 days or more; and
- The new job is in the same or similar occupational classification as the job for which the PERM labor certification or approval was initially made.
As long as the I-485 application for Adjustment of Status has been pending 180 days, the approved labor certification is almost always portable after the 180th day after filing the I-485. In that case, the employee can continue to use the labor certification and/or the approved I-140 to become a permanent resident as long as the new job is in the "same or similar occupation even if:
The I-140 is not yet approved (as long as the I-485 is pending 180 days).
The I-140 is withdrawn by the employer (after 180 days).
The new job is in a different geographic location.
The new job is self-employment.
The employer goes out of business (after 180 days).
The employee stops working before 180 days, or never worked for the employer (However, the applicant must prove that the job offer was in good faith, that it existed until the 180th day and that both the employer and employee intended the job to take place on approval of the Green Card).
The new salary is different