Change Of Employment

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Most employment-based immigrant petitioners and beneficiaries are aware that under certain conditions, alien beneficiaries may change jobs even before they obtain permanent residence. These conditions are delineated in the newly published law, AC21 S.106(c). Under this law, which is popularly phrased as the ‘180 day rule’, an alien beneficiary who has an approved labor certification or I-140 employment-based immigrant petition may change jobs if the I-485 application has been filed and pending for 180 days and the new job is in the same or similar occupational classification as the job for which the certification or approval was originally made.

This appears deceptively simple but still leaves certain questions unanswered, at least until the BCIS publishes their own guidelines.

1. If the alien changes employment, what procedures does he or she have to follow?

No specific rules have been promulgated. However, several BCIS officials have expressed that it is expected that the applicant notify the Service of such change in intent. Without such notice, if the BCIS Adjudicator has reasons to believe that the applicant’s intent has changed (for example, a prolonged I-485 processing time, an economic downturn, a massive lay-off in the specific industry, etc.), an RFE may be issued, requesting the petitioner to verify the job’s terms and conditions. In order to avoid further delay and/or possibility of complication with future immigration process, it probably is a better practice to submit such notice affirmatively.

2. Does the original sponsoring employer have any obligation to notify such change?

Neither the original sponsoring employer nor the new employer have a duty to notify the BCIS in the case when the alien change jobs under the AC21. Sometimes employers, however, wish to notify BCIS for various reasons. Employers feel they need to keep the record clean and straight. Other employers simply fear that somehow there will be consequences if the changes go unreported. A simple notice of change of intent after the I-140 approval will not have any consequences to the pending I-485 application as long as the alien has secured a same or similar job position after 180 days, as discussed above.

What is unfortunate, however, is that some petitioners attempt to take away any future immigrant benefits from the former employees by requesting to revoke their I-140 petition even after the I-140 approval and 180 days past the I-485 filing.

3. What happens if I-140 revocation has been requested?

BCIS has yet to come to a solid conclusion in this matter. Some BCIS officials have stated that an I-485 that has been pending for 180 days or more can gain approval under AC21, even if the employer requests the BCIS to revoke the approved I-140. However, in practice, it appears that in certain instances, some BCIS centers denied I-485s based on the revocation of the I-140 petition, even though the I-140 revocation occurred after 180 days have passed. Naturally, these decisions have been appealed and are waiting for the final verdict.

As common sense dictates, the spirit of AC 21, when reasonably interpreted, is to allow the alien beneficiary flexibility and freedom. With the growing backlog at the BCIS, the alien beneficiaries in the past have been virtual slaves to the immigration process. They oftentimes lose their right to permanent residence in the very final stage of the long grueling process, especially when the economy turns sour; they are also unable to take upon better opportunities or effectively negotiate with the employer for the fear that they might lose their opportunity for immigration. In recognition of such hardship aliens face in the prolonged immigration process, the Congress enacted AC 21 to give the individuals the ability to obtain approval of an I-485 and permanent residence based on a job offer from a new employer. The former employer should not be able to stop the alien from exercising this right, however minimal it is, in the very last stage of the process.

Fortunately, most employers do not tend to revoke the I-140 petition and remain helpful to the former employees. In an unfortunate case where the original sponsoring employer decides to revoke the I-140 approval, however, the beneficiary’s best defense is affirmatively notifying BCIS of the change of employment with thorough documents.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

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