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The Job Change after Form I-140 Application,
and the Form I-140 Application without Labor Certification

1. The Job Change after Form I-40 Petition and Form I-485 Application  

The immigrant visa retrogression creates lengthy delays in the Green Card process. The AC-21 portability is available to an individual who is the beneficiary of an approved I-140 petition and whose I-485 application has been pending at least 180 days. The benefits of AC-21 portability are available to a qualified individual, even if there is no an available visa number for his/her case. 

An USCIS memo on AC-21 Act issues specifically states that AC-21 portability remains available to an I-140/ I-485 applicant who is impacted by retrogression. As long as the person had an approved I-140 and previously filed the I-485 when the priority dates were current and that I-485 remains pending, one does not need to have a current priority date in order to change jobs under AC-21 Act. 

Some I-485 applicants may be retrogressed for several years, particularly those in the EB-3 classification, the ability to change jobs may be very useful in allowing individuals to progress in their careers or to find new employment in the event of a layoff. As with any major decision, it is important to be aware of the potential risks involved before changing jobs. 

Any I-140 applicant, whether impacted by retrogression or not, should be aware that if the petitioning employer revokes the I-140, this can cause complications, possibly including a denial of his/her I-485 application. While the revocation of an I-140 petition by the employer should not cause a denial after one becomes eligible for AC-21 portability, the procedures applied sometimes create problems.

The USCIS stated that if a sponsoring employer revokes an approved I-140 petition after the I-485 application has been pending for 180 days or longer, and there is no notification on file that the foreign national is using AC-21 portability, the USCIS must then issue a Notice of Intent to Deny (NOID) the I-485. In order to prevent the USCIS from issuing a NOID, it is generally advisable for the applicant to notify the USCIS of the job change under AC-21 Act as soon as possible.

2. The Job Change after Form I-40 Petition and before Form I-485 Application  

An approved form I-140 petition is usually employer and job specific. An I-140 pettition typically can be used only to apply for lawful permanent residency (Green Card) with the petitioning employer. In fact, the form I-140 petition generally cannot even be used for a new position with the same employer that filed the form I-140. Such a job change likely would require the employer to file a new PERM Labor Certification and I-140 petition for the employee.

One major exception to this general rule is that the form I-140 petition approval may remain valid with a new employer if that company is a successor in interest to the original employer or petitioner.

Similarly, a new form I-140 petition is not required if the beneficiary meets the job portability requirements pursuant to the American Competitiveness in the Twenty First Century Act (AC21).

3. The Possibility of a Request For Evidence (RFE) after Job Change

The change of employer when the Form I-140 petition has not yet been approved by USCIS is risky. One of the key problems is the possibility of a Request For Evidence (RFE) on the Form I-140 petition which may be issued by USCIS. 

When the Form I-140 is reviewed, the USCIS can issue an Request For Evidence (RFE). Since the Form I-140 is filed by the employer, under current practices, the RFE is sent to the employer. Thus, even if the RFE addresses matters that involve the alien beneficiary, such as education and experience, it will be sent to the employer. If the employer does not respond, or responds stating the alien beneficiary is no longer employed by the petitioner, the Form I-140 petition will likely be denied.  

4. The Form I-140 Petition without PERM Labor Certification

The following situations may obtain form I-140 petition approval without a Labor Certification:

  • Aliens of Extraordinary Ability in Business, Sciences, Arts, Education, or Athletics; An alien can apply for a green card without a sponsoring employer;

  • Outstanding Professors/Researchers; Individuals who enjoy international recognition as outstanding academics;

  • International Executives or Managers;

  • Exceptional Ability in the Sciences, Arts, Business with a National Interest Waiver; If the services of a professional would be of a national interest to the United States, the professional can apply for a green card without a sponsoring employer;

  • Registered Physical Therapists;

  • Registered Professional Nurses;

  • Family Immigration: Special consideration is given to the immediate family members of U.S. citizens. For applications by family members other than spouses, minor children, and parents, this process may take years.

  • Asylum: Persons who are in the United States, and legitimately fear returning to their country of origin as a result of persecution based on their race, religion, or membership in a political or social group, may qualify for special consideration. Economic hardship or suffering will not support a request for asylum. Absent exceptional circumstances, a person must request political asylum within one year of arriving in the United States. If political asylum is granted, the applicant may remain in the United States and may eventually obtain permanent residence.

5. Upgrade Green Card Application Case from EB3 to EB2 Category

There are some alien applicants who are interested in the possibility of what is referred to as "upgrading" their Green Card application EB3 cases to employment-based, second preference (EB2). This strategy is used following the approval of an I-140 petition in the employment-based, third preference (EB3) category.

The observation of the monthly U.S. Department of State's visa bulletin reveals a major difference between the EB2 and EB3 immigrant categories, for some countries like India, Mexico, Philippines, and China. For example, in recent years, EB2 India has fluctuated between 2004 and 2010, EB3 India has slowly advanced for the same period, from 2002 to 2003. Thus, the EB2 India's visa movement is faster than EB3.

For many EB3 visa applicants, the immigrant visa waiting time is unavoidable. However, some employment-based immigrant visa applicants may qualify to change to EB2 visa category because of the following reasons:

    * having obtained advanced degrees,
    * having additional job experience,
    * having new job offers that satisfy the requirements for EB2 filings;
    * an increase in the complexity and sophistication of one's job duties and a commensurate increase in salary.

The change to EB2 immigrant visa category does not actually "upgrade" the previously filed Labor Certification (LC) and Form I-140 petition. This EB3 to EB2 "upgrade" process requires the filing of a new Labor Certification and related Form I-140 petition, requesting EB2 classification.

Using the EB2 category, the obvious benefit is a potentially accelerated path to eligibility for filing for adjustment of status to permanent residence with form I-485, the strategy involves requesting retention of an earlier and more favorable priority date, which is possible in cases with an earlier-approved Form I-140 petition.


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