How a Job Changes May Impact Your Approved I-14026 Dec 2019
Moving from one employer to another in the best of circumstances can be stressful. For a foreign national who has an approved I-140, however, moving to a new employer – or even just a new position with the same company – can be absolutely nerve wracking. Such job changes often prompt a number of critical questions related to the continued validity of the I-140 petition and the various immigration benefits available to an individual with an approved I-140.
Background on the I-140 Petition
The I-140 immigrant petition filed by the U.S. employer for an employee is the second major stage in a 3-step process for the employee / beneficiary to obtain a green card through a PERM labor certification case. The first stage is the PERM filing with the U.S. Department of Labor (DOL), when the employer must establish that no qualified U.S. worker is available for the position. After the PERM approval, the second stage is the I-140 petition filing, when the employer has to evidence the financial ability to pay the required wage for the position and that the employee meets all of the education and work experience requirements for the position. The final stage is the adjustment-of-status application (form I-485) for one who is in the United States, or consular processing for one applying from abroad.
Can I Transfer the I-140 Petition to a New Employer or Job?
An approved I-140 is usually employer- and job-specific. An I-140 typically can be used only to apply for lawful permanent residency (i.e. a “green card”) with the petitioning employer. In fact, the I-140 petition generally cannot even be used for a new position with the same employer that filed the I-140. Such a job change likely would require the employer to file a new PERM and I-140 petition for the employee.
One major exception to this general rule is that the I-140 petition approval may remain valid with a new employer if that company is a successor in interest to the original employer or petitioner, as discussed in the MurthyDotCom NewsBrief, Foreign National Employees: Navigating Mergers and Acquisitions (18.Nov.2013).
Similarly, a new I-140 petition is not required if the beneficiary meets the job portability requirements pursuant to the American Competitiveness in the Twenty First Century Act (AC21), as detailed in the MurthyDotCom NewsBrief, Final Policy on AC21 ‘Same or Similar’ Job Requirement (07.Apr.2016).
Can the Petitioner Revoke My Approved I-140?
Ordinarily, the I-140 petitioning employer may send a withdrawal notice to the U.S. Citizenship and Immigration Services (USCIS) at any time. However, once 180 days have passed following approval of the I-140 petition, the USCIS will not revoke the I-140 petition solely based on the petitioner’s request for the withdrawal of the petition.
If the USCIS receives the employer’s withdrawal request within 180 days of the I-140 petition approval, the USCIS will revoke the approved I-140. In this situation, the employee / beneficiary still gets to retain the priority date, unless the revocation was determined to be due to fraud, willful misrepresentation or material error by the USCIS, or the underlying labor certification was 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 may use it with any (including a new) employer, as a basis to request an extension of H1B status beyond the standard 6-year maximum. For this, the I-140 must remain valid until the H1B petition approval. As discussed above, if the petitioning employer withdraws the I-140 within fewer than 180 days of approval, that revoked I-140 petition cannot be the basis to extend H1B status beyond the standard 6-year maximum timeframe that is permitted under the law.
Can I Use the Priority Date from my I-140 after its Revocation?
As noted above, once the I-140 is approved, the USCIS will grant a request for priority date retention for any other I-140 petition filed on behalf of the same beneficiary. This applies even if the petitioning employer withdraws the approved I-140. If, however, the USCIS revoked the I-140 petition due to fraud, misrepresentation, or a material error in the approval, the USCIS will not honor the request for priority date retention.
A change in employer or job may directly affect a foreign national employee’s ability to use the approved I-140 petition. It is an issue of significant importance to foreign national workers. Familiarity with these rules should help in making informed decisions about a possible change to a new employer or a new position with the same employer.
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, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers.
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