Can I change jobs while I wait for my Green Card?
JOB PORTABILITY - FAQ for Physicians
Can you change your employment while waiting for final approval of your Green Card?
Simply put, YES, you can change your employment while waiting for final approval of your Green Card application if your I-485 application has been pending for 180 days or more. HOWEVER, there are rules to portability that you must consider, less you face denial of your application.
Is Your Application Dependent on A Job Offer?
If your green card category depends upon a job offer, your application is dependent upon your employer (“sponsor”), and you generally cannot change positions.
Has Your I-140 Been Approved?
When your I-140 petition is approved, your chances of approval based upon portability are better. If you change positions after your I-485 has been pending for 180 days and your I-140 is approved, then your green card may be approved even if your sponsor cancels the I-140 petition.
However, if you change positions while your I-140 petition is pending approval and your sponsor withdrawals the I-140 petition, your I-485 application will be denied, even if your sponsor doesn’t withdraw the pending I-140, the government can still deny you for other reasons.
If your I-140 is denied, then your I-485 application will be denied, even if it has been pending for 180 days. To avoid denials, wait until the I-140 is approved before changing positions.
The “Safe Harbor” Period
Even if your I-140 petition is approved, you should not leave your employment before the “safe harbor” period begins. Although the government cannot deny your I-485 application solely because you left your employer before 180 days have passed, the government can issue a “Request For Evidence” (“RFE”) to determine if the original offer of employment was bona fide (a real offer). Your sponsor’s support will be necessary to respond to the RFE, and its refusal to cooperate could mean denial of your I-485 application.
If your sponsor withdraws the approved I-140 petition before the 180 days have run, portability will not apply to you, and your green card application will be denied; to avoid this, wait until your I-485 application has processed for 180 days before changing positions.
If your new employer is willing to provide an update on the new employment that could help with the portability of your application, the government usually requires an update on your employment status before approving your green card. Your new employer should provide a letter describing your new position, including duties and responsibilities as well as the salary of the position. Be sure the new employer agrees to provide this letter before you change jobs.
How Does Portability Work?
Once you’ve filed form I-485, Application to Adjust Status, based on employment-based immigration visa petition, and that application remains unadjudicated for 180 days or more then you must consider whether the new job is in the “same or similar occupational classification” as the job for which the petition was filed. For job portability to apply to you, your new job must be comparable to the sponsored one.
The burden falls on you to prove that the relevant positions are the “same or similar.” To meet the standard of proof, you must submit relevant, probative, and credible evidence, considered “individually and within the context of the totality of the evidence,” which leads the adjudicator to conclude that your claim is “more likely than not” or “probably true.”
To determine whether the new position is comparable to the sponsored position, the government will look to see if you’ve established that the new position is the “same or similar occupational classification” as the job for which the petition was filed. To determine the jobs are in the “same or similar occupational classification,” you must prove that they are “identical” or “resembling in every relevant aspect.”
USCIS may refer to the DOL’s market expertise as reflected in its Standard Occupational Classification (“SOC”) system, which organizes occupational data and classifies workers into distinct occupational categories.
This is accomplished by submitting evidence regarding the DOL occupational classification codes assigned to the respective jobs and other material information from alternative resources; job duties for each job; skills, experience, education, training, licenses or certifications specifically required to perform each job; wages offered for each job; and any other material and credible evidence relevant to determining whether the new position is in the “same or a similar occupational classification.” A change to the “same or a similar occupational classification” may involve lateral movement, career progression, or porting to self-employment, either in the same or a different geographic location.
However, be aware that this system classifies supervisors and managers of other workers in a different manner. If you’re going from a non-supervisor/on-managerial position to a supervisory/managerial position, you should be aware that USCIS will be critical of the progression. In many instances, an individual’s progress in their career may easily fit the standards discussed in this article, such as when an individual moves into a more senior but related position that does not have a managerial or supervisory role, in these instances you need consider whether the original position and the new position are in the “same or similar occupational classification(s).”
In other instances, career progression may involve a different analysis, such as when you move from a non-managerial/non-supervisory position into a managerial/supervisory role, if the evidence provided by you establishes that: in your new positions, you’re primarily responsible for managing the same or similar functions of your original jobs or the work of individuals whose jobs are in the “same or similar occupational classification(s)” as your original positions, USCIS may treat such evidence favorably in determining whether the jobs are in similar occupational classifications for purposes of 204(j) portability.
Conclusion
Ultimately, you can change jobs while your Green Card Application is pending. However, there are many things to consider, and the best option is to speak to a professional to get a better understanding of your situation.