As a business immigration law firm, we often get questions from foreign nationals about how starting new employment or switching employers may affect their U.S. permanent residency applications. It is completely natural to feel nervous before making a big change, and you should know your options before doing so. Let’s go over what you should consider when starting new employment and switching employers.
For people starting new employment, one option is to negotiate with your employer to start your green card process at the start of the hiring process. Another option is to talk to your managers to discuss the timeline of your sponsorship process, because the PERM process could take six months or longer. Unless there are extenuating circumstances like a layoff, the PERM process takes a while to go through and employers are to pay for the entire process.
If you’re being sponsored for U.S. permanent residency by your current employer and want to look for a new job, your options depend on which stage of the green card process you’re in. If nothing has been filed with the U.S. Department of Labor (USDOL), your new employer will most likely have to sponsor you all over again. If your immigration visa petition I-140 has already been approved, you should be able to keep the priority date, which lets you know when you’re able to gain U.S. permanent residence based on your country of birth. Your new employer may still need to submit a PERM application with the USDOL, but you may be able to file for your permanent residence quicker once your priority date nears.
In the situation that your I-140 petition has been approved and you want to switch companies, you can, but keep in mind your current visa timeline. When switching companies, your new employer may need to start the green card process for you all over again, but good news is you should be able to retain your priority date from your previous employer’s I-140 petition approval. The takeaway is that your new employer still needs to sponsor your U.S. permanent residency for you to benefit from the I-140 petition approval by your prior employer. Beginning January 17, 2017, new regulations allow employees to retain the I-140 approval and priority date even if the employer withdraws the I-140 petition. In the situation that the withdrawal is 180 days from the approval date, the foreign national can retain the priority date from the I-140 approval.
If your green card application and employment authorization document (EAD) based on your adjustment of status (AOS) application is pending, you’re now in charge. In the case that your priority date for your case is current, your I-140 immigrant visa petition is approved, and your AOS application has been pending for at least 180 days, you have the option to change employers so long as you switch to a similar or the same position and maintain your ongoing green card application. Just make sure you verify that your new role is within the same occupation classification as your prior role, or there are enough similarities to mount a strong argument that the positions are similar.
Edited by Winnie Kan, Director of Marketing and Public Relations.
Please note that this article is not legal advice. If you have any questions or concerns regarding your immigration case, your best option is always to contact an immigration lawyer to discuss your situation, because immigration cases are all individual and vary case-by-case. If you have any additional questions, please contact attorney Barbara Wong, Esq. at [email protected] or (408) 329-9184 ext. 120.
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