FAQs for Changing Employers & EB-2 to EB-3 Porting

OTHER FREQUENTLY ASKED QUESTIONS

What if my EB-3 filing is denied? Is my EB-2 still valid?

If your EB-3 is denied, it does not automatically invalidate your EB-2 filing.

My new employer wants to sponsor my green card. Can I transfer my new I-140 to a pending I-485?

After a new labor certification and new I-140 are approved with the new employer, the applicant can potentially request that USCIS transfer the petition to a pending I-485 Application for Adjustment of Status. No new fees or filings are required, but the request must be made in writing and will be decided on a case-by-case basis. The beneficiary must continue to be eligible for adjustment of status (current priority date) and the application must still be pending. The risk is that USCIS could determine you did not “intend” to work for the original employer if you never return to that position.

I have an approved I-140 from Employer A. Can I use the approval to extend my H-1B status beyond six years with a new employer?

Yes, you can use the approved I-140 petition to request an H-1B change of status or an extension if the I-140 is still valid and was not revoked by the original employer.

I’m no longer with my sponsoring employer but my priority date is current. Can I still apply for a green card?  

The green card process is for a future position. The employee does not need to remain with the sponsoring employer as long as:

  • The employer continues to have an intention of permanently employing the individual once they receive the green card (and did not notify USCIS to withdraw their I-140 job offer upon the individual’s departure from the company); and
  • The individual continues to have an intention of accepting the permanent job offer upon receiving the green card.

The other issue to keep in mind is that the sponsoring company must continue to have an ability to pay the individual from the time of filing the labor certification all the way until receiving the green card. Some employers are only able to show this by currently paying the individual at or above the proffered wage. If the individual leaves the employer, but the job offer remains valid and the individual still intends to accept the job offer, then the employer needs to be able to show an ability to pay the individual by its tax returns, either by Net Income or Net Current Assets.

If the job offer does not remain valid then the individual will need to start the process over with the new employer but can retain the priority date at the time of filing the I-140.

The previous employer would need to submit the I-485J confirming the job offer is still available. You can only proceed with the I-485 with a new employer if you had an I-485 pending for at least 180 days. Under that scenario your new employer could submit the I-485J, but if you have not previously filed an I-485, then the previous employer would need to sign the I-485J.

My job title changed through my current employer. Am I still eligible under the previous PERM labor certification?

If your role has only changed slightly, you may be able to file an I-140 amendment to update USCIS. If you are still performing the same job duties listed on the PERM labor certification you can continue with an I-485 based on the PERM with the old job title.

Your PERM labor certification is specific to the position, the employer, and the geographic location so if any of those variables change, you may be required to file a new PERM and I-140. However, you can still retain your priority date in subsequent filings. Please confirm with an attorney whether any changes need to be reported to USCIS or may affect your ability to retain the existing PERM.

I want my green card through my current employer. Do I have to start over?

A job change is likely to require a new PERM and I-140, but all is not lost: you can still retain your priority date.

I have changed employers while my I-485 is pending. Can I still adjust status?

If Form I-485 has been pending for a minimum of 180 days (from receipt date) and the new job is in the same or similar occupation, AC21 allows an individual to change jobs to a new employer.

Next Steps

Check out our document checklist on our October Visa Bulletin release post. When you’re ready to initiate your case, email us at info@challalaw.com to initiate your EB-2 to EB-3 case.