Q & A May 8, 2005

Q & A 1.

Q&A 1.

Changing Job When You Have an Approved National Interest Waiver I-140

Last year, my NIW I-140 was approved. Later, I applied for I-485, I-131 and I-756. In 2005, my I-131 and I-756 were approved. Currently, I work in a small company in NY and my employer applied H-1B extension for me (not yet 6 years). Questions:

1. If I found a similar and better job in a big company in MN 180 days after my I-485’s receipt number was issued, can I change my job? If I change job, will it affect my I-485 approval and interview? If later I was fired by the current company, would my I-485 be denied?
2. If I can change my job, should I transfer my I-485 application from Vermont Service Center to Nebraska Service Center or local district office? If it was transferred, would I receive a new receipt number and receipt notice date and my I-845 priority date would be changed?
3. If my I-485 is transferred to a new service center, will my current I-131 and I-756 still valid or do I have to re-apply?
4. Should I request the new company maintain my H-1B status under the new job? Should the new company reapply a new H1-B or just apply for extension for me? Will I encounter H-1B quota problem?

Mr. Lee Answers:

1 Changing the job when you have an approved national interest waiver I-140 generally presents a delicate situation in which your subsequent employment must also be seen as being in the national interest. An example would be a Ph.D. who obtains an NIW approval performing heart disease research at a public institution. Would that same individual still be entitled to his or her NIW approval when switching positions as a chemist at a major pharmaceutical company? In looking over the statute on portability which allows individuals to keep the I-140 approval if changing jobs to the same or similar position after the I-140 petition has been approved and the I-485 pending for 180 days, it is not altogether clear that individuals under the NIW category who are both petitioner and beneficiary are included. There is the possibility that changing positions could affect your I-485 application. If you are fired by your current employer, your I-485 would most likely be denied if the U.S.C.I.S. knew that you were no longer employed and if you had no subsequent employment by which you could hold onto the I-140 approval.

2 The U.S.C.I.S. Service Center to which you filed the I-140 petition still retains jurisdiction over your case and can continue processing the I-485 so long as the I-140 petition is still valid.

3 Transfer to a new Service Center would not invalidate any existing advance parole papers or employment authorization cards.

4 Holding an H-1B status has an advantage in that you would still be maintaining status if the I-485 application was denied. Contrast that to an employment authorization card issued on the basis of the I-485 filing which would automatically be terminated with the I-485 denial. If the new company applies for an H-1B on your behalf, it would mark down "new employment" along with "extend or amend the stay" on the I-129 form. You would not encounter a problem with the H-1B cap inasmuch as the cap generally only applies to first time H-1B holders.

Copyright © 2003 - 2005 Alan Lee, Esq.
The information provided here is of a general 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 the Law Office of Alan Lee or establish an attorney-client relationship.