Choose the right time to job-hop, EB-2/EB-3 green card can still be obtained as expected!

Abstract: When you apply for the employment-based green card, all the applicants have to go through these three major phases- PERM, I-140, and I-485. For applicants born in Mainland China and India, it is an arduous journey starting from the first phase to the final approval of the green card. While waiting for the green card, what if the green card applicant contemplates a job-hop? Would the original date still be deemed effective, or it will lead to delaying the dates of the green card applications? This article will further explain in detail the effects of job-hopping for applicants in different stages of the green card application. We wish you the best of luck in selecting the right time to switch employers, and obtaining the green card in the shortest amount of time.

There are three major steps to the EB-2/EB-3 employment-based green card applications: The petitions for PERM, I-140, and I-485. For detailed information on the three major steps of the employment-based green card, please see “How to obtain an EB-2/EB-3 employment-based green card? Overview of the three major steps.”

Before we further analyze the legal impacts it might create on the green card application by changing employers, we first want to remind all the applicants that the submission of PERM, I-140, and I-485 does not automatically grant the applicants the rights to work legally in the U.S. All the applicants are required to work under the authorized permit of OPT, H-1B or EAD card before the I-485 application is approved. Therefore, the applicants should first consider whether if they will still have the legal right to work in the U.S. after making a switch of employers, before considering the impacts on the green card application that might incur when making the switch. For applicants whose H-1B is near the end of the 6-year term, they should be concerned if the new employers will be willing to apply for an H-1B extension on their behalf so they will not lose the legal right to work in the U.S. after the change.

In the following, we will use real case examples to help the applicants figure out the best time for a job change by better discerning and understanding each of their situations.

Example: Michael works in A company in which the employer has already promised to submit an employment-based green card application for him. The important timeline of the green card application is indicated in the picture below:

How the timing of the job change will influence the priority date

The applicant can not submit I-485 application (the last stage of the green card application) until the priority date becomes current. Therefore, the priority date can decisively determine the length of time for the whole application.

As indicated in the above picture, the applicant’s priority date is the date on which the PERM 9089 is submitted to DOL. However, please note, this priority date can only be kept after the I-140 petition has been approved. So, in order to efficiently expedite the process, it is important to submit the PERM 9089 as soon as possible.

Problem 1: If Michael wants to switch to B company after A company has submitted the PERM 9089 on his behalf, when will be the best time to make the change without losing the priority date obtained from the PERM application submitted by A company to avoid waiting again?

Just as the above picture indicated, Michael’s priority date is the date on which the PERM 9089 is submitted to DOL, however, the validity of this date is contingent on the approval of Michael’s I-140. In other words, the effectiveness of the priority date is based on the approved I-140.

Therefore, if Michael moves to a different employer before his I-140 is approved, once A employer withdraws the submitted I-140 petition, then the priority date obtained from the PERM stage will no longer be effective. When Michael arrives at the new employment, employer B will have to submit again the PERM 9089 and I-140 petition and to obtain a new priority date. The waiting process will start all over again.

If Michael wants to keep the previously obtained priority date, he will then have to wait until the approval of I-140 to make the employment switch. The approval of I-140 secures Micahel’s waiting spot for the green card applications, and the spot will not be affected by changes in employers, positions, types of employment-based immigration visa such as switching from EB-3 to EB-2, or even withdrawals from the previous employers (e.g., employer A withdrawing the approved I-140). In other words, if Michael moves to B company after the approval of his I-140, he can still request USCIS to adjudicate the I-485 based on the obtained priority date from the previous I-140 petition submitted by employer A, regardless of changes in the types of employment-based immigration (e.g., EB-2 or EB-3), position (same SOC code in the petition to DOL), or withdrawal of the submitted I-140 petition.

How the timing of the job change will influence applicants who have reached their H-1B term ( 6 years) and their applications for H-1B extension

At the beginning of the article, we have already mentioned that submitting PERM and I-140 does not grant applicants the right to work legally in the U.S. Therefore, applicants who are coming to an end of their H-1B term have to consider not only the impact of changing jobs on their green card applications but more urgently whether if they can maintain the right to work in the U.S. before obtaining the green card. For applicants whose H-1B terms are coming to an end, the employer can apply for an H-1B extension based on the approved I-140. The H-1B extension is closely connected to factors of the timing of the PERM submission and the approval of I-140. For more detailed information concerning this topic, please continue to check back for future updates.

In this article, we will focus on whether if the new employer can submit an H-1B extension based on the previously approved I-140 submitted by the previous employer.

Problem 2: To keep the priority date obtained from PERM submitted by the previous employer, Michael has decided to wait until the approval of his I-140 before making the switch to his new employer B company. As Michael is reaching the end of his H-1B 6 years’ terms, can B company submit an H-1B extension petition based on the previously approved I-140 petition for Michael? Also, what is going to happen if employer A withdraws Michael’s I-140 petition?

The employer has the right to withdraw the I-140 petition throughout any stages of the application, include an application that is ongoing and approved. According to the new rule by USCIS at the beginning of 2017, if the submitted I-140 petition has been approved for 180 days and more, then, employer’s withdrawal of the petition (I-140) will not be revocated by the USCIS. Therefore, the employer’s withdrawal of I-140 will not affect the applicant’s previously obtained priority date, but, if the employer withdraws the petition within the 180 days, then applicants who are near the end of their H-1B term can not apply for an H-1B extension based on the previous submitted I-140 petition.

As indicated below, if Michael makes the move to B company from A company within 180 days of the approved I-140 petition, and A company has withdrawn its I-140 petition, then the new employer will not be able to apply for an H-1B extension based on the previously approved I-140, and Michael will lose the status to legally work in the U.S. That is unless Michael can apply for other types of visas to obtain the right to work legally. Nonetheless, Michael can still keep the priority date obtained from the PERM application submitted previously by employer A and use it for the new employment-based immigration petition that will be submitted by employer B.

Regardless of any position change, if Michael leaves employer A on the 180th day or 180 days after his I-140 is approved, employer B can still submit an H-1B extension based on the previously approved I-140 even if the petition is withdrawn by employer A. At the same time, Michael still has the privilege to access the originally obtained priority date for the new employment-based green card application submitted by employer B, regardless of changes in the position or types of immigration.

Reminder from attorney Zeng: Although employer B can submit the H-1B extension petition for Michael based on the previously approved I-140, however, the green card application submitted by employer B on Michael’s behalf will still have to start from PERM instead of jumping directly to the submission of I-485 application based on the previously approved I-140.

If the employer has already submitted the I-485 application

Problem 3: Michael’s priority date has reached the dates for filing, and employer A has already submitted the I-485 application for Michael. If Michael, at this time, moves to B company, in this case, will the green card application submitted by B company start over again from PERM?

According to the rule of The American Competitiveness in the 21st Century Act for employment-based green card application, if the I-485 application submitted by the employer has been pending for 180 days or more, the applicant can move to a position of the same or similar occupational classification. Instead of starting the green card application from PERM, the new employer will only need to submit the I-485 supplement J form and other supporting materials. The policy memorandum announced by the USCIS in March 2016 explained in detail the definition for the position of the same or similar occupational classification. When adjudicating whether if the position meets the requirement for the same or similar occupational classification under the AC21 Act, the USCIS will consider factors such as the Standard Occupational Classification (SOC) system of the position in DOL, job responsibilities, the required skills, experience, education, wages, etc.

As indicated below, if Michael’s I-485 application with employer A has been pending for 180 days or more, and if the new position is of the same or similar occupational classification, job responsibilities, SOC code, etc., in this case, employer B will not have to start the green card application from PERM but submitting the I-485 supplement J form will therefore suffice.

The green card application process is complex in that it involves issues of status. Attorney Zeng hereby reminds all applicants to carefully analyze their individual situation and consult attorneys in selecting the right time to make the switch of employment that works best to the applicants’ advantage. The journey to obtaining the green card can be long and arduous, and we hope this article can help all applicants navigate the job change process with precision. Lastly, we wish you the best of luck in obtaining the green card!

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Biography of Attorney Hui Zeng:

Attorney Hui Zeng is a senior partner of Zeng Law Group, PLLC in New York. Attorney Zeng was named as the annual Rising Star for three consecutive years in 2017, 2018, and 2019 by Super Lawyers magazine of Reuters. Only about 2.5% of practicing lawyers in the U.S received this honor. Attorney Zeng was also selected as 2018 Leading Women Lawyers in NYC by Crain's New York magazine.

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