How Soon After I Start Work With My Green Card Sponsor Can I Switch Jobs?

Let's say your employer is sponsoring you for a green card in the employment-based second preference category, and you are already working in the United States, with an I-485 Adjustment of Status (green card) application pending at U.S. Citizenship and Immigration Services (USCIS). As the months of waiting on USCIS's decision go by, you might be getting offers to join other companies to do the same or a similar job to your current one. That raises the question: is your green card tied to your current employer? Or can you take another job now or as soon as you have your green card?

This article will discuss what the rules are in this situation, focusing both on:

• switching to a similar job at another employer, and
• switching to an entirely different job in the United States.

When Employment-Based Green Card Applicants Can Change to a Similar Job With Another Employer

Recognizing that the employment-based immigration sponsorship process can take many years before foreign nationals become U.S. lawful permanent residents, Congress passed something called 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.

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.

When Employment-Based Green Card Applicants Can Change to a Different Type of Job

Now, to the question of what happens if 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 experienced immigration attorney before making such a move will help you make an informed decision about whether and when to accept a new job.