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?
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.