Yes, you can change jobs after I-140 approval. The approval allows you to port your priority date to a new employer and file a new I-140 petition for a different position, as long as the new role remains in a similar occupational classification.
Understanding I-140 Approval
The I-140, or Immigrant Petition for Alien Worker, is a form submitted to the United States Citizenship and Immigration Services (USCIS) to apply for an employment-based immigrant visa. Approval of this form allows foreign workers to establish their eligibility for permanent residency in the U.S.
Job Change: The AC21 Provision
The American Competitiveness in the 21st Century Act (AC21) is a law designed to improve job flexibility for foreign workers. Under AC21, you can change jobs after I-140 approval if all qualifications are met.
Requirements for Changing Jobs After I-140 Approval
- Your I-140 petition must be approved.
- Your pending Adjustment of Status (AOS) application (Form I-485) must be pending for at least 180 days.
- The new job offer must be in the same or similar occupational classification as your original position.
Process of Changing Jobs After I-140 Approval
To change jobs after your I-140 has been approved, follow these steps:
- Notify the USCIS of your plan to change employers by submitting an AC21 portability request.
- Your new employer must file a new I-140 petition on your behalf based on the same approved labor certification/portfolio within the validity period.
- Upon approval of the new I-140, your priority date will be ported to the new employer, retaining your place in the Green Card application process.
Job Change: Risks and Considerations
Even though changing jobs after I-140 approval is possible, consider these potential risks:
- Delays in the Green Card process due to the I-140 and AOS processing times.
- Job changes may result in the USCIS scrutinizing your application more closely, potentially leading to a Request for Evidence (RFE) or even denial.
- Your original employer has the option to revoke the approved I-140.
Final Thoughts on Changing Jobs After I-140 Approval
Changing jobs after I-140 approval is achievable, provided you meet the necessary requirements and follow the correct process. However, carefully consider potential risks and consult with an immigration attorney to ensure a smooth transition.
Effect of I-140 Revocation
If your original employer revokes your approved I-140 after you have changed jobs, your priority date, in most cases, will still be retained. However, if the I-140 is revoked due to fraud, misrepresentation, or material error, the priority date may be lost. Be aware of your I-140 approval status and maintain open communication with both your current and previous employers.
Impact on H-1B Extensions
An approved I-140 also plays a significant role in obtaining H-1B extensions beyond the usual 6-year limit. If your I-140 is approved, you or your new employer may request a 3-year extension of your H-1B visa status at a time under AC21, even if your previous employer revokes the I-140 after your departure.
Preparing for New Employment
Before starting a new job after I-140 approval, be sure to gather the necessary documentation to establish your eligibility under the AC21 provisions:
- Copy of I-140 approval notice from the original employer.
- Proof of the pending AOS application (I-485 receipt notice).
- Job offer letter from the new employer confirming that the new role is in a similar occupational classification.
- Pay stubs or other evidence of continued employment in a qualifying position.
Family Members and I-140 Approval
Your I-140 approval not only affects your ability to change jobs, but also the eligibility for Green Card applications for your spouse and dependents. Eligible family members can file their AOS applications (Form I-485) concurrently with yours, ensuring their chances of obtaining permanent residency remain consistent with your job change process.
Consulting with an Immigration Attorney
Given the complexities of the immigration process and potential risks in changing jobs after I-140 approval, consulting with an experienced immigration attorney is highly recommended. An immigration attorney can help you navigate the requirements, ensure you comply with all necessary regulations, and provide guidance on managing potential risks associated with the job change.
Frequently Asked Questions
Here is a set of common questions that arise when considering changing jobs after I-140 approval. These answers provide further insights and clarification on key aspects surrounding job change and maintaining one’s immigration status.
Can my employer withdraw my I-140 after I change jobs?
Yes, your previous employer can choose to withdraw your I-140. However, as long as your I-485 has been pending for more than 180 days and your new job is in the same or similar occupational classification, AC21 provisions allow you to retain your priority date and continue the Green Card process.
Can I change jobs if my I-140 is pending?
Changing jobs while your I-140 is still pending is risky because if the original employer withdraws the I-140 petition or if it is denied, you will lose the priority date. Ideally, you should wait until your I-140 is approved and your I-485 has been pending for at least 180 days before changing jobs to take advantage of AC21 provisions.
Do I need my previous employer’s permission to change jobs after I-140 approval?
No, you do not need your previous employer’s permission to change jobs after your I-140 is approved. However, you need to ensure your new employer files a new I-140 petition on your behalf and your new job is in a similar occupational classification to take advantage of the AC21 provisions and retain your priority date.
What happens if my new job is in a different occupational classification?
If your new job is in a different occupational classification, the AC21 provisions may not apply. You may not be able to retain your priority date and might need to restart the Green Card process with your new employer, requiring a new labor certification and I-140 petition. Consult an immigration attorney before making such changes.
Will my spouse and dependent children be affected by my job change after I-140 approval?
Your spouse and dependent children’s eligibility for permanent residency is linked to yours. As long as you meet the AC21 requirements for job change and maintain your immigration status, their Green Card applications should generally remain consistent with your job change process.
