Changes in Employer / Employment and Green Card Processing30 Nov 2017
As is painfully evident for many, the process of sponsorship for permanent residence (commonly referred to as a “green card”) via employment can be extremely lengthy. The timeframes, from initiation of the PERM labor certification (PERM LC) application with the U.S. Department of Labor (DOL) to actually becoming a lawful permanent resident or green card (GC) holder, can take many years to complete. Inevitably, during the process, many sponsored workers may have changes in their current employment, and plans for new or different employment in the future. Following are some of the most common scenarios and questions we at the Murthy Law Firm receive from those whose priority dates are finally current in employment-based green card cases, but who are no longer working (or never worked) for the GC-sponsoring employers.
Concept of Future Job Offer in EB Cases
Most employment-based (EB) green card sponsorship is based on the concept of a future offer of employment. This future job offer becomes binding once the sponsored individual becomes a permanent resident based on the particular employer’s GC sponsorship. Simply put, as long as the sponsoring employer and the sponsored worker intend to go through with the employment offer at that future time when the sponsorship will result in permanent residence, the case can be approved when all other requirements are met. However, as we explain, the case will only be approved if the U.S. Citizenship and Immigration Services (USCIS) believes that the employer is genuinely offering the job and the beneficiary genuinely intends to work for the employer upon obtaining permanent residence.
If Current Employer is Not the GC-Sponsoring Employer
Example 1: Future Job Offer / Future Employment
Although all GC cases are based on future employment, as explained above, there are cases filed by employers for individuals they intend to bring into the company in the future – employees who do not work for the employer during the labor certification and I-140 petition process. A question often asked of our attorneys is with regard to working for a different employer. It involves a situation in which Employer A filed the LC and the I-140 petition. The sponsored foreign national does not work for Employer A; rather s/he has been working for Employer B, maintaining nonimmigrant status such as H1B or L-1. When the priority date for the Company A case becomes current, we are presented with questions regarding eligibility to file the I-485. In this example, Company A and Company B are not connected in any way.
Example 2: Changed Employer
A second fact pattern that commonly arises involves a foreign national who has worked for Company A, which filed the employee’s LC and I-140, both of which were approved. While waiting for the priority date to become current, the individual ceases working for Employer A and moves to Employer B. Questions reach our attorneys regarding eligibility to file the I-485 when the priority date becomes current. Again, Company A and Company B are separate, unrelated entities.
Can the I-485 be Filed in Such Examples?
Whether the I-485s can be filed in both example 1 and example 2 depends upon whether the original petitioning employer, Company A, continues to offer the position to the sponsored employee, and whether the sponsored employee intends to join Company A upon approval of the I-485. If Employer A is unwilling to go through with the employment offer, the case ends. In that event, the I-485 case cannot proceed, as there is no intent to employ the sponsored worker. The same would be true if the sponsored worker is unwilling or unable to work for the sponsoring employer and wants to stay with the new employer, in this example, Employer B.
It should be noted that, if there is no job offer from Company A (or the foreign national does not wish to work for Company A), the I-485 case may not move forward via the Company B job offer; Company B would have to file a new PERM LC and I-140 containing the terms and conditions of its job offer. The option to obtain GC approval through an alternative, similar job does not apply at the time the I-485 is filed. If Company B starts a new green card process, the sponsored employee would have the benefit of retaining the priority date from Company A’s approved I-140.
It is important to note that, if Company A is still offering the future job, as in our first example, or is willing to re-hire the beneficiary, as in our second example, the I-485 can potentially be filed. In both examples, however, the beneficiary must be willing to accept the job offer by the time the I-485 is approved. It also should be noted that the USCIS must be persuaded that there is a genuine job offer or the I-485 will not approved.
In most situations, an I-485 supplement J must be filed with the I-485 to show the intent of the employer that the job is bona fide and the intent of the employee to work for that employer. This is signed by both parties under penalties of perjury.
USCIS Can Question Validity of Job Offer
As explained above, during the green card process the sponsored worker does not have to be working in the position for which s/he is being sponsored – or even for the petitioning employer. The best evidence of intent to work for the petitioning employer, however, is to actually be employed by the petitioning employer. Thus, if the employment has not commenced, or was temporarily interrupted, it is important to consider how this may appear to the USCIS when the case is evaluated. The issue of transitioning to (or back to) the GC-sponsoring employer should be discussed with a qualified and experienced immigration attorney. There are risks to one’s case when trying to wait until the GC / I-485 is approved before starting the job that should also be discussed.
Genuine Job Offer Must Always Exist
Cases simply should not move forward to the I-485 stage unless there truly is a genuine job offer that the sponsored worker intends to accept at the appropriate time. Once such a case is approved, the employee is expected to work in the offered employment. Failure to do so casts serious doubt on the validity of the green card. This can create problems, including an inability to naturalize to U.S. citizenship, as well as the (less common) possibility of the initiation of rescission of permanent resident status or even, possibly, removal proceedings.
As the green card process sometimes takes years to be completed, sponsored employees and petitioning employers, as well as new employers, should be aware of the issues arising out of changed circumstances. In most situations, it may be wise for a new, subsequent employer to simply file a new GC case, if that is the preferred employment offer. Depending on the situation, however, there may still be options with the original sponsoring employer, since current employment does not necessarily have to be with the petitioning employer before adjudication of the green card application. If, during the entire green card process, there is an intent to start or return to the employment on which the green card case is based, then the possibility of filing the I-485 when the priority date is current should be explored with a knowledgeable and experienced immigration attorney.
While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, we at the Murthy Law Firm refer clients to articles, like this one, which remains relevant and has been updated for our readers.
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