Website Q & A - April 30, 2007

When can I leave my present sponsoring employer and safely keep my old labor certification case?

Dear Mr. Lee,

My company is sponsoring me as a senior technician, and I have just received an offer from another company as a development scientist at a higher rate of pay. My labor certification was approved in September 2006 and the I-140 petition was approved in January 2007. At that time, I filed the I-485 application to adjust status. The new company wants me to start ASAP. If I do that, what will happen to my green card application? Will I be able to keep it or will I have to start all over again?

Dear reader,

Under the American Competitiveness in the 21st Century Act (AC-21), an individual who already has an I-140 preference petition approved and has had the I-485 adjustment of status application pending for 180 days is allowed to change employment and not lose the approved petition so long as the employment is in the same or a similar occupation. In your case, there appear to be two questions -- the first whether the new job of a development scientist is in the same or similar occupation to your present job as a senior technician. That determination will be made by the U.S.C.I.S. after consideration of all of your representations. The second question is whether you can keep the case if you leave your present employment prior to the 180 days having passed. U.S.C.I.S.'s current interpretation focuses upon whether there was a bonafide position at the time that the I-140 petition was filed and also at the time that the I-485 was filed. That is a question of fact also be determined by the U.S.C.I.S. officer. I do note, however, that the safer route is to wait the 180 days prior to changing to a new employer.


Copyright © 2003-2012 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.