Filing the I-485 with New Employer & New Jobs: Limits and Restrictions

Movement of the EB2 cutoff dates during the months of October and November 2011, as shown in the U.S. Department of State Visa Bulletin, has resulted in questions regarding adjustment-of-status (Form I-485) filings for individuals no longer working for the labor certification (green card sponsoring) employer. MurthyDotCom and MurthyBulletin readers are reminded that, in labor certification-based permanent residence (“green card”) cases, the I-485 application must be based on the job offer outlined in the labor certification.

General Rule: I-485 Cannot Simply be Filed with New Employer

Many MurthyDotCom and MurthyBulletin readers have waited for years for their EB2 priority dates to become current. During this waiting time, some individuals have changed employers and no longer work for their green card-sponsoring employers. Thus, as they see that their priority dates are current, they want to move forward with the final filing, the Form I-485.

These individuals often ask if the adjustment-of-status application can be filed through their new employers. The answer is generally no, to the surprise of many. The only exception to this is if the new employer has an appropriate legal connection to the original employment sponsor. This typically involves mergers and acquisitions or other such corporate changes or buyouts. This is known as a successor-in-interest relationship. The qualifications as a successor in interest are beyond the scope of this article. In most situations, the new employer has no connection to the prior employer and, thus, the I-485 cannot simply be filed based on the new employer’s job offer.

AC21 Portability Permits Notification of New Employment

Some of the confusion over whether an I-485 can be filed through a new employer stems from the American Competitiveness in the 21st Century (AC21) Act provisions. Questions about eligibility to file the I-485 via a new employer are often phrased by explaining that the new job is similar to the old job – the one that is described in the labor certification.

The AC21 green card portability provisions apply after the I-485 has been filed and pending for at least 180 days. It cannot be utilized at the time of filing the I-485. The I-485 application must be based on the job offer in the labor certification, and confirmed in the sponsoring employer’s I-140 employer petition.

Exception to File I-485 Based on LC and I-140 of Earlier Employer

An employment-based green card case is always considered to be a future job offer. Thus, even if there has been a job change, it remains possible that the employment position set out in the labor certification and I-140 could still be available to the foreign national. The sponsoring employer would have to still be willing to offer the job, and the applicant would have to be willing to accept that employment upon approval of the I-485.

In the event that the job contained in the labor certification and I-140 is still available to the beneficiary, and the beneficiary is willing to work in that position, the I-485 could be filed. This strategy and the timing for transition to the sponsoring employer should be discussed with an experienced immigration attorney. It is important that the job offer and intent to work in that position be legitimate and bona fide. Failure to transition to employment with the sponsoring employer could result in denial of the green card. Even if the case is approved and permanent residence is granted, there can be other serious, future problems based on perceived fraud or otherwise improper green card approval.

Safer Route for Majority: File Fresh Case & Retain Priority Date

If the job offer from the earlier sponsoring employer no longer exists, or employment in that position is not desired, it is necessary to forgo filing the I-485. While watching this opportunity disappear can be painful, it is necessary if there is no longer a proper basis for filing the I-485 and obtaining permanent residence. In such an event, the best approach is often to seek a new labor certification approval via the new employer. While this can be a lengthy process, the strategy includes requesting retention of the priority date from the previously approved I-140 petition with the prior employer or sponsor. Thus, hopefully, at some later point the foreign national would have an approved labor certification, approved I-140, and the priority date from the earlier case. Assuming this priority date is still current, it would allow for the filing of an I-485 based on the more recent labor and I-140 filings with a new job offer from the new employer.

Start New GC Process Even if Priority Dates Not Current

It is not necessary or advisable to wait until the priority date becomes current before initiating the process of filing a new labor certification with a new employer. When there is a change in employers, unless there are other viable green card options (such as AC21 or options through one’s spouse), it is usually best to proceed with a new labor filing without substantial delay. It is often wrongly assumed that immigration benefits can be obtained through a labor and I-140 approval held with a prior employer. Considerable time can be lost before discovering that it is necessary for the new employer to begin the green card process afresh.

Conclusion

Many misunderstandings exist about the employment-based green card process. Individuals who have made, or are considering, changes in employment should seek immigration counsel from attorneys experienced in this area of the law. We at the Murthy Law Firm can discuss procedures and strategies to facilitate a smooth transition, and to avoid common mistakes and pitfalls that result in loss of time and opportunities.

Copyright © 2011, MURTHY LAW FIRM. All Rights Reserved