Considerations Before Changing Jobs While I-485 Application is Pending

For foreign nationals awaiting a green card, the lengthy processing times for form I-485 applications for adjustment of status can create uncertainty about career opportunities. Many applicants wonder whether they can accept a new job offer, pursue a promotion, or make other employment changes while the adjustment of status application is pending. This article explores the most important considerations when contemplating an employment change during the green card process.

Present Job vs. Future Job Offer

Employment-based green card applications generally are based on a job offer for a future position the applicant will occupy when the green card is approved. There is no legal requirement to work for the sponsoring employer during the PERM labor certification, I-140, or I-485 processes. However, when considering a job change while an I-485 application is pending, a key question is how that change affects the validity of the future job offer underlying the green card application.

For self-petitioned employment-based categories, such as EB1A, EB2 national interest waiver (NIW), or EB5, there usually is no future job offer to consider. However, applications in the EB1B, EB1C, EB2, and EB3 categories do rely on a future job offer, and such applicants must consider whether the original job offer must remain valid or if the intention is to change the job offer supporting the I-485 application as well.

Present Considerations: Maintenance of Status

The applicant should consider the impact on present nonimmigrant status. An applicant typically must maintain valid nonimmigrant status at the time of filing an I-485 application, and it generally is recommended to maintain that status throughout the pendency of the application. This helps the applicant have continued work authorization and travel ability while the application is pending. Before changing employers, the applicant should consider whether the new employer will support a new nonimmigrant petition. If the new position requires using an employment authorization document (EAD) instead, the applicant should consult an immigration attorney to understand the potential risks.

Future Position Considerations: AC21 Portability

The American Competitiveness in the Twenty-First Century Act (AC21) provides job portability for certain I-485 applicants. Under AC21, an applicant with a pending I-485 application may change to a new position in the “same or similar occupational classification” as the job described in the underlying PERM labor certification, provided that certain conditions are met. To qualify for AC21 portability, the I-485 application must have been pending for at least 180 days from the receipt date, and the underlying I-140 petition must have been approved. When an I-485 applicant changes jobs under AC21, the applicant must submit a Supplement J to USCIS.

Time it Right

The timing of a job change can be critical. The original I-140 approval must remain valid through the 180-day mark of the pending I-485 application. If an employer withdraws an approved I-140 petition before the I-485 has been pending for 180 days, this prevents the ability to use AC21 portability. If the I-140 has not yet been approved when employment ends, the risks are even greater. Therefore, the applicant should make sure that leaving the original employer before 180 days will not result in the employer withdrawing the I-140 petition.

“Same or Similar” Occupation

The applicant must evaluate whether a prospective new position meets the “same or similar” standard before accepting a job offer, as an incompatible position could jeopardize the I-485 application. The determination of whether a new position qualifies as “same or similar” is governed by several factors, but primarily by the U.S. Department of Labor (DOL) standard occupational classification (SOC) codes and the position’s job duties. Positions with identical SOC codes generally are considered to be in the same-or-similar classification, but AC21 also allows for some progression to different SOC codes if the jobs share essential qualities and requirements.

Conclusion

Changing jobs while an I-485 application is pending involves careful consideration of multiple factors. Each situation is unique, and the stakes are high. One mistake or misjudgment can jeopardize the green card application. An individual considering a job change during the I-485 process is strongly encouraged to consult with an experienced immigration attorney to determine the best strategy and maximize the chances of success.

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