My employer is sponsoring me for a green card. The category is employment-based second (I work as a software engineer), and my I-485 Adjustment of Status Application has been at USCIS for a year. I'm starting to get offers to join other companies to do the same job I have now. Some jobs are nearby, and some are in other cities. The pay would be about the same. Is my green card tied to my current employer? Or can I take another job now or as soon as I have my green card? What are the rules here?
Recognizing that the employment-based immigration sponsorship process can take many years before foreign nationals to become U.S. lawful permanent residents, Congress passed the American Competitiveness in the Twenty-First Century Act of 2000 (or "AC21"). The AC21 Act has a key provision called "job flexibility for long-delayed applicants for adjustment of status."
The rule allows someone who has filed an I-485 Application to Adjust Status (sometimes referred to as the "green card application") to accept a "same or similar" job with another employer after the I-485 has been pending for 180 days or more, without necessarily affecting government approval of the I-485 application.
The factors that U.S. Citizenship and Immigration Services ("USCIS") use to evaluate whether a job is in a same or similar occupation are the job duties, the skills, experience, education, training, licenses, or certifications required for the job, the salary, and the Department of Labor ("DOL") occupational codes, which apply to the job that is the basis for the I-485 application and to the new job. In March 2016, USCIS published guidance in Chapter 20.2(e) of its Adjudicator’s Field Manual outlining how it reviews these cases.
In March 2016, USCIS published guidance in Chapter 20.2(e) of its Adjudicator’s Field Manual outlining how it reviews these cases.
For a listing of occupational codes, see the DOL's O*Net Online system. Even if you find a matching job title, however, that's not the end of the analysis. As lawyers say, the job title is not "controlling," and USCIS will want to look behind the title to see what the job really involves. If you're thinking about taking advantage of job flexibility under AC21, it is best to consult an immigration attorney who has experience with employment-based cases to help you make an informed decision about what new jobs will meet the criteria.
While you may qualify for job flexibility under AC21, as discussed above, you also asked whether your green card is tied to the employer that is sponsoring your immigration processing and how long after you receive your green card you need to continue working for the sponsoring employer. These are still relevant questions if, for example, you wish to switch to a job that is NOT in a same or similar occupation, or even if you wish to stop working altogether.
The key factor is your intent at the time you filed your I-485 application. As long as you clearly intended to work for the employer that sponsored your green card process, there is no hard-and-fast time period during which you need to stay with that employer. Nonetheless, a relatively early departure, such as a few days or weeks after receiving the green card, could raise questions as to your intent at the time of filing.
If USCIS approves your I-485 application in under 180 days, and you want to change employers soon after getting your green card, the key question will be, did you intend to work for the sponsoring employer when you filed your I-485 application? If yes, there is no set time for how long you need to wait before accepting a job with another employer.
With AC21, Congress seems to have eliminated the intent issue for I-485 applications that remain pending 180 days or more. Nonetheless, USCIS still may look at your intent if your employer sponsors you to work as an engineer, and you accept a job as an accountant, for example, with another employer as soon as you get your green card. As recommended above, consulting an immigration attorney before making such a move will help you make an informed decision about whether and when to accept a new job.
by: Kyle Knapp