- The individual must be admissible to the United States. This means they must not have any disqualifying conditions, such as certain immigration violations, certain criminal convictions, or a likelihood of becoming a public charge.
- The individual must have a qualifying offer of future employment (see below for more details), and must intend to accept that job offer. Or, they must have exceptional ability in a particular field, and intend to work in that field in the United States. In all cases, USCIS must approve a visa petition for the individual, which is filed on Form I-140.
- There must be an available immigrant visa for the individual. In other words, they must wait until other people who are in line ahead of them receive their green cards first.
These codes are used by USCIS to refer to the three levels of preference [10] for employment-based immigrants, into which most employment-based immigrants fall:
- Aliens with extraordinary ability (EB-1A), outstanding professors and researchers (EB-1B), and multinational managers and executives (EB-1C).
- Aliens with advanced degrees (master's or higher) or exceptional ability. [9]
- Skilled workers, professionals, and other workers.
Each preference level has its own annual quota. If the EB-1 quota is not completely used up, the unused numbers "spill over", that is, become available for EB-2 applicants. Likewise, any unused numbers from EB-2 spill over into EB-3 [10]. In general, fewer people qualify for EB-1 than EB-2 and fewer qualify for EB-2 than EB-3, so waiting times are usually shorter for EB-1 than EB-2 and shorter for EB-2 than EB-3. However, this is not always the case.
Many people imagine that an employment-based immigration system works roughly like this: you first need to get a work visa in the destination country, and then, after you've been working for a few years on a work visa, you can apply to convert the work visa into a permanent residence permit. Many countries do have such a system, including most countries in Europe, Australia, New Zealand, and Hong Kong.
The United States immigration system, however, issues immigrant visas and green cards to qualified individuals based on the concept that the US has a need for certain types of permanent workers, and a permanent worker must have a green card—therefore, certain aliens may receive green cards in order to convert them into permanent workers that the US needs. A person who has worked in the US for many years under temporary worker status will not automatically qualify for a green card; they must establish that they will continue to be needed for an indefinite period of time in the future. Another person who has work experience outside the US, but has never been to the US, may be able to establish that the US needs them as a permanent worker; such a person would then be able to receive an immigrant visa, and receive a green card as soon as they enter the US. In both cases, the green card is issued on the basis of prospective employment.
Thus, an employer can sponsor either a current or prospective employee for a green card, if they believe that employee is needed in the US on a permanent basis [29]. USCIS will grant or deny the petition filed by the employer, based on whether the position meets the legal requirements to be filled by a permanent foreign worker and whether the particular alien is qualified for that position [10]. If the petition is approved, the alien can apply for an immigrant visa [43] to enter the US or adjust their status within the US to lawful permanent resident [44]. Finally, having obtained permanent residence through their employer, the alien must do the job they were sponsored for on a permanent
basis, since the immigrant visa or status was granted specifically in order to allow them to do that job on a permanent basis [33]. (Note that permanent
does not mean eternal
. We will discuss this issue later.)
The temporary and permanent work visa systems in the US are not directly related to each other, and it is incumbent upon the alien and their employer to determine which type of visa to apply for. Depending on one's qualifications and intents, one may apply for a temporary visa only, one may apply for a permanent visa only, or one may apply for a temporary visa first and then later make an application for a permanent visa, in which case the latter will be a totally separate process from the former. An employer may choose to initiate the temporary visa process and the permanent visa process for the same employee in parallel, as the former will typically have a shorter processing time.
Note that there are some categories of employment-based immigrant visas that don't require a sponsoring employer (see below). However, the applicant, in those cases, must still establish that their skills are needed in the US on a permanent basis. The green card is issued to such an applicant based on the prospect of them rendering a benefit to the US by working in the US, in their area of expertise, on a permanent basis.
Yes. The fact that permanent work visas are granted on the basis of prospective future employment implies that the beneficiary of a permanent work visa does not necessarily have to work for the sponsoring employer before obtaining the visa (see e.g. [41] and [45]), but does have to work for the sponsoring employer after obtaining the visa. Most employers will not start the green card process for someone who is not currently on their payroll (since it is expensive and time-consuming), but the possibility exists. Another important implication is that during the green card application process, it is not whether you are employed
that matters, but rather whether a permanent job offer is available to you
, since the latter is the criterion for eligibility (see e.g. [41]). We will discuss these issues further in the following sections of this FAQ.
In cases where a job offer is not required, a similar principle applies. An individual does not need to work in the US prior to obtaining the green card, but they must make a commitment to work in their field on a permanent basis after receiving the green card.
Physicians in underserved areas and special immigrant religious workers can earn
a green card by completing a certain required amount of employment in the US, although the purpose of these green card programs is still to allow these individuals to continue to render their services in the US on a permanent basis.
Employees of certain international organizations, with at least 15 years of tenure, can obtain green cards after their retirement. [47]
Most employment-based immigrants will fall under Third Preference or Second Preference (advanced degree, not exceptional ability) and will need to be sponsored by an employer and go through the following steps:
- Labor certification, in which the employer must establish, and the Department of Labor must agree, that they need to fill a position in the United States and cannot fill it by hiring a U.S. worker [1][2][3][4].
- Filing and approval of Form I-140, Immigrant Petition for Alien Worker by the sponsoring employer [5]. In this step, USCIS reviews the employer and the prospective employment, but also determines whether the particular alien has the requisite qualifications.
- Filing and approval of Form I-485, Application to Register Permanent Residence or Adjust Status [6]. In this step, USCIS verifies that the alien still has an available job offer, and meets other requirements to immigrate to the United States related to (for example) health, criminal background, and national security issues.
Arguably, there is also "step 0", which is to get a job that offers green card sponsorship in the first place, which is fairly difficult. Many software engineering jobs do offer green card sponsorship, but employers are usually only willing to start the green card process after the employee starts working at one of the employer's US offices, which is itself not always easy, given visa requirements. Outside the software engineering sector, relatively few jobs offer green card sponsorship. This is partially because step 1 is expensive and often difficult, which acts as a deterrent to sponsoring foreign nationals. Large tech companies such as Google usually have well-established procedures to maximize the chances of approval of the labor certification for software engineers and other technical employees. However, getting a labor certification approved can be a (sometimes insurmountable) challenge for smaller employers and for employers seeking to sponsor employees for non-STEM roles.
The acronym PERM, referring to the electronic system for labor certification, is often used as a metonym for the labor certification process.
Your priority date is the date on which the labor certification application was accepted for processing by the Department of Labor [7]. This priority date represents your place in line; other employment-based immigration applicants who filed before you will be eligible to receive an immigrant visa or adjustment of status from the annually limited pool before you. You can apply for adjustment of status once the cut-off date published by the State Department becomes later than your priority date [8]. If, upon labor certification approval, the cut-off date is later than your priority date, then you can file Forms I-140 and I-485 concurrently. Otherwise, your employer or authorized representative will file Form I-140 first, the approval of which "locks in" your priority date, and you will have to wait for your priority date to become current before you can file Form I-485.
Aliens with extraordinary ability may self-petition for EB-1A classification [21]. This petition does not require a sponsoring employer; the alien may file it on their own behalf. However, a prospective employer may be involved in the petitioning process (e.g., by paying legal fees); indeed, a job offer with a high level of compensation may be used as one piece of evidence for the alien's claim to extraordinary ability [22].
Aliens with exceptional ability, who believe that their employment in the United States would greatly benefit the nation, may self-petition for EB-2 classification and request a National Interest Waiver (NIW) in lieu of obtaining sponsorship from a US employer [23][24]. Again, a prospective employer may be involved, but does not have to be.
The labor certification process usually takes several months (see below) so, if you're appropriately qualified, you might want to be apply for a category that doesn't require a labor certification, in order to get approved as quickly as possible.
By statute, the labor certification requirement applies to EB-2 and EB-3 classifications [25]. Therefore aliens who apply for EB-1 classification for extraordinary ability, as outstanding professor or researcher, or multinational manager or executive, are not subject to the labor certification requirement [26][27][28]. Outstanding professors and researchers do require a job offer for an appropriate teaching or research position from an appropriate institution, but a labor certification is not required; only an offer letter from the institution is required [27]. Multinational managers and executives must, of course, have a qualifying job offer, and the employer must provide evidence that the job meets the requirements of the EB-1C classification, but still, no labor certification is required [28].
Aliens with exceptional ability who qualify for an EB-2 National Interest Waiver (as discussed above) do not require a labor certification [24].
In all cases, Form I-140 must be used [5], and if a sponsoring employer is required, then Form I-140 must be filed by the employer or authorized representative thereof [29]. So there are basically three sets of steps, depending on which classification you are seeking:
- (EB-3 and most EB-2 cases) Find a sponsoring employer, have them file a labor certification, have them file Form I-140, and then file Form I-485; or
- (EB-1B and EB-1C cases) Find an employer willing to offer you an appropriate position, have them file Form I-140 with an offer letter and other required evidence, and then file Form I-485; or
- (EB-1A and EB-2 NIW cases) File form I-140, and then file form I-485.
The EB-1A, EB-1B, and EB-2 NIW routes are therefore often faster than other routes, but relatively few people have a sufficient level of accomplishment to qualify for them.
I don't think I have any skills that US-based workers don't have. Can my labor certification be approved?
You may be more unique than you believe, and your employer, working together with a good immigration law firm, will try to make that case. Your employer might be sponsoring you for a role that requires experience in specific areas, say, MapReduce together with C++ API design. If you're an experienced software engineer, you probably have many skills that allow you to contribute to the company in a specific and valuable capacity. Even if you're a new grad, you might have done internships or taken specific courses where you learned such specific skills. If not, then in a couple of years, you might have acquired such skills through your full-time experience, and at that point you may be able to start the labor certification process.
It does tend to be more difficult to hire foreign nationals on a permanent basis for non-STEM jobs, unfortunately. Many employers won't even try.
Between a few months and a year. When immigration lawyers tell you that it's difficult to predict how long this takes, they're not just hedging their words. It's actually quite unpredictable, since it involves three steps, each of which takes an uncertain amount of time:
- Prevailing wage determination by the Department of Labor, in which the DOL determines how much compensation the employer must offer to U.S. workers in order to entice them to apply for the job;
- Recruitment, in which your sponsoring employer attempts to recruit a U.S. worker for the position at the prevailing wage, and documents their failure to do so;
- The application for the labor certification itself, submitted to DOL, which takes time to process, and which may or may not be audited by DOL (meaning that they don't believe the company and will watch them closely as they again attempt to recruit U.S. workers for the position), adding a few more months.
The process can be sped up by "guessing" what the prevailing wage is going to be, and then recruiting at or above that wage level while waiting for the DOL to issue the prevailing wage determination. However, if the DOL's prevailing wage ends up being higher than anticipated, the recruitment process has to be started all over again at the prevailing wage.
You are also responsible for obtaining letters signed by your former employers' HR departments, your former managers, or other individuals who can attest that you gained the experience required for the role in question while working with them. Typically, the employer's lawyers will draft a job description for your case and ask you to obtain letters from your previous employers that attest to the fact that you have all the qualifications in the job description. (This can occasionally be difficult.) If you're not able to obtain these letters in a timely fashion, the employer may not be willing to begin the recruitment and prevailing wage determination steps, since they will be useless unless you're able to get the required letters. If the employer begins the recruitment and prevailing wage determination but in the end, you're not able to obtain some of the letters, it will probably be necessary to edit the job description (to only contain qualifications you're actually able to prove) and begin the process over again. Thus, this can introduce delays.
This question is usually easy to answer; USCIS provides a website where you can look up how backlogged they are. For example, if it tells you that they're currently processing I-140s filed 5 months ago, then you can estimate that your I-140 will take about 5 months to get approved. Unfortunately, that website appears to be broken at the time of writing this answer. Hopefully they'll fix it soon.
It's possible to expedite the I-140 by paying a $1225 premium processing fee. If USCIS accepts the fee, they will either render a decision within 15 calendar days or refund the fee. Unfortunately, sometimes they will simply flat-out reject the fee, saying that premium processing isn't available at the moment.
If your employer doesn't pay the premium processing fee for you, they may give you the option of paying it yourself. In cases where you will have to wait many years before filing the I-485, getting premium processing for the I-140 doesn't speed this up, because your priority date is determined by when the labor certification application was filed, not by when the I-140 gets approved. Nevertheless, Brian highly recommends getting premium processing, because the sooner your I-140 is approved, the sooner you can rest assured that your priority date has been locked in. Then, even if you are fired or laid off, or you quit, the priority date will be retained for future immigration applications by another employer (see below for more information).
You are sorted into a bucket based on your preference category (EB-1, EB-2, or EB-3) and your country of birth. The reason why country of birth is relevant is that no more than 7% of the annual EB quota can be used by natives of any single country [11]. As a consequence of this rule:
- EB-2 and EB-3 waiting times for people born in India are in the decades. The December 2018 visa bulletin shows that individuals who applied back in 2009 are having their priority dates become current this year. However, because of high numbers of applicants in recent years, the cut-off dates move forward by only 1 to 2 weeks per month. This means that if your priority date is in 2018 then you will probably have to wait for much longer than 9 years.
- EB-2 and EB-3 waiting times are a few years for people born in (mainland) China.
- Waiting times tend to be shorter for EB-2 and EB-3 applicants not born in China or India, and for EB-1 applicants. Often, these categories are "current", meaning that Form I-485 should be filed without delay.
Note that EB-2 Advanced Degree, EB-2 Exceptional Ability, and EB-2 Exceptional Ability National Interest Waiver cases all have the same priority level. Getting a National Interest Waiver does not put you at the front of the EB-2 queue. Thus, Indians and Chinese cannot avoid the long waiting times by qualifying for a National Interest Waiver.
You can find out which priority dates are becoming current each month by reading the visa bulletin. You'll have to compare cut-off dates across multiple editions of the visa bulletin to get a sense of how quickly each bucket is moving.
Unfortunately, USCIS doesn't publish information about how many people are waiting to adjust status in each bucket, so it's impossible to produce accurate estimates for when you'll reach the front of the line.
I was born in India. What's the point of applying for a green card if I'll probably die of old age before I get it?
Having an approved I-140 exempts you from the 6 year limit on H-1B time [12][13]. Therefore, most Indians who want to work in the US indefinitely should apply for a green card and, while waiting, continue to extend their H-1B status. Otherwise, once they've used up their 6 years of H-1B time, they have to spend a year physically outside the US before they can qualify for H-1B status again [14].
The answer depends on whether or not the classification you're applying for requires a sponsoring employer.
As discussed above, the EB-1A and EB-2 NIW classifications don't require a sponsoring employer. Therefore, the EB-1A and EB-2 NIW processes do not need to be restarted when changing employers. However, in order for your Form I-485 to be approved, you must continue to be eligible for the classification granted by your I-140 [30]; therefore switching occupational fields may cause issues, which we won't get into here, as it is not a common scenario.
As the other categories are tied to a specific employer, and the Form I-140 filed by the employer is only valid for the job offer from that particular employer, you cannot move to the I-485 stage if the job offer on which Form I-140 was based is no longer available to you [31]. Usually (but not always), if you are going to switch jobs, it means you don't have the intention of working at the original employer anymore, and that employer is no longer holding a future job open for you, so that means there is no longer a valid job offer for immigration purposes, and it follows that you would need a new I-140 in order to move on to the I-485 stage.
If your new I-140 is for a classification that requires a labor certification, then the new employer would have to go through the labor certification process. Any previous labor certification could not be re-used to file a new I-140 since the I-140 is for a specific job offer and the required labor certification would need to be for that particular job.
However, once you have an approved Form I-140 for any EB-1, EB-2, or EB-3 classification, if you later file a new Form I-140 or have a new Form I-140 filed on your behalf, and it is also for an EB-1, EB-2, or EB-3 classification (it may be for the same classification as the old I-140, or for a different one) then the new Form I-140, when approved, would receive the priority date of the old I-140 [15]. Indeed, even if the previous employer withdraws the I-140 they filed on your behalf, this does not stop you from retaining the priority date according to the AC21 regulations [16][17], regardless of whether the new I-140 is filed before or after the old I-140 was revoked. There is no 180-day waiting period for priority date retention; a priority date becomes portable as soon as the original I-140 is approved and withdrawal does not remove portability (see below).
Thus, once you find an employer willing to sponsor you for a green card, but you want to switch companies, it may be wise to wait until after the I-140 is approved before switching, thus ensuring that you will lock in your priority date as early as possible. If you are from an oversubscribed country—meaning that it will be many years before you're eligible to file Form I-485—you can switch employers without delaying the green card process, as long as you had an approved Form I-140 with the original employer, and the new employer is able to get a new Form I-140 approved by the time your priority date becomes current.
If the new classification does not require a labor certification, then obviously it would not be necessary to redo the labor certification process. For example, an EB-1B researcher changing institutions would need a new Form I-140 filed by the new institution in order to demonstrate that there is a qualifying job offer from the new institution, but no labor certification would be required.
The EB-1C classification is a special case because it requires the multinational manager or executive to have been employed by the same employer or by an affiliate or subsidiary outside the United States for at least 1 year (see [32] for more information). Therefore, if an alien with an approved EB-1C petition who is currently working for the sponsoring employer wishes to switch to a new employer, they would need a new I-140 filed by the new employer and if they wanted the new I-140 to also be in the EB-1C classification, they would need to leave the United States for 1 year to work for the new employer in order to be eligible for that new I-140. That being said, a beneficiary of an EB-1C petition may decide to seek a different classification such as EB-2 or EB-3 with the new employer, removing the need to leave the US for 1 year; the priority date could be retained. This may not be of much use for Indian beneficiaries, however, since a given priority date would take much longer to become current in the EB-2 or EB-3 classifications than in EB-1.
There is a special I-485 portability rule that applies if your I-485 has been pending for at least 180 days, which eliminates the need for a new labor certification and new I-140 provided that the new employment is in "the same or a similar occupational classification" [18][19]. This portability rule is available for all classifications that require a job offer, namely EB-1B, EB-1C, EB-2 (except NIW), and EB-3. (An EB-1A or EB-2 NIW applicant would have no need for it.) We will discuss this portability rule further in a separate section below.
In general, a change of status has absolutely no effect on the PERM or I-140 process. If the PERM or I-140 is pending, it continues to be pending. If the PERM or I-140 is approved, it remains approved. The reason for this is that every EB petition is a petition for future employment (see above). As long as the alien continues to maintain the intent to perform the qualifying employment after they become a permanent resident, and as long as the sponsoring employer (if required) continues to maintain the intent to employ the beneficiary after they become a permanent resident, the nonimmigrant status of the employee prior to obtaining permanent resident status is irrelevant.
In particular, an EB-1C petition filed for an L-1A nonimmigrant remains valid if the L-1A nonimmigrant changes to some other status such as H-1B.
If an I-140 remains approved for at least 180 days before being withdrawn by the sponsoring employer, it remains approved despite having been withdrawn [20]. Thus, you might want to stay for 180 days so that your employer doesn't withdraw the I-140 within that time period, and the I-140 will remain approved after you leave.
However, for priority date retention, this actually doesn't matter. Priority date retention under [16][17] only requires that you have an I-140 that was once approved. So even if it becomes revoked because the sponsoring employer withdrew it within 180 days, this doesn't affect your ability to retain the priority date. In other words, you can leave right after the I-140 is approved, and even if the employer withdraws it, you can still retain the priority date.
Where it does matter is for post 6th-year H-1B extensions [13], which require a currently approved I-140. Thus, if an approved I-140 is withdrawn within 180 days of approval, that I-140 can no longer be used for post 6th-year H-1B extensions. If it is withdrawn after 180 days of approval, it remains approved and can still be used for post 6th-year H-1B extensions. Staying at the employer that sponsored the I-140 for at least 180 days after approval therefore helps to prevent possible interruption in your work authorization (due to possible ineligibility H-1B extensions) when you switch to a new employer.
First of all, if you are applying in the EB-1A or EB-2 NIW category, then your eligibility is not based on a particular job offer. Here, we will only be discussing the case where the I-485 is based on a specific job offer in the EB-1B, EB-1C, EB-2 (except NIW), or EB-3 categories.
Recall that when you file Form I-485, it has to be based on an I-140 representing a valid future job offer. Note that if you have multiple approved I-140s, including some from job offers that have been withdrawn or are otherwise no longer valid, then you can file Form I-485 based on the earliest priority date. However, regardless of which I-140 you got your priority date from, your I-485 must be filed on the basis of one particular I-140 whose job offer is currently valid (meaning that the employer intends for you to begin or continue doing that job when your I-485 is approved) [37]. In effect, the I-485 is a petition for USCIS to grant you LPR status so that you can do that job on a permanent basis. ("Permanent" does not mean "eternal"; see below.)
You do not necessarily need to be working for the sponsoring employer when your I-140 and I-485 are filed. However, the intent must exist for you to work there after your I-485 is approved. That intent must exist at both the time when the I-485 is filed, and at the time when it is adjudicated (usually several months later, although it can occasionally take up to 2 years) [37]. In many cases, the applicant will be working for the I-140 sponsor as a nonimmigrant worker (e.g., in H-1B or L-1 status) at the time when the I-140 is filed, at the time when the I-485 is filed, and at the time when the I-485 is approved. In that case, the requisite job offer and intent exist throughout the process.
However, once the I-485 has been pending for at least 180 days, you are allowed to "replace" the job offer that it is based on. That is, you may abandon the intent to work for the I-140 sponsor (or said sponsor may withdraw its intent to employ you), and the I-485 may be adjudicated on the basis of a different job offer: that is, at the time of adjudication, you must have the intent to do a job upon approval, but that job doesn't have to be the same one as the I-140 job. Furthermore, a new I-140 is not required for the new job offer. In order to qualify for this portability rule, the new job has to be in "the same or a similar occupational classification" as the I-140 job offer [18]. If this condition is not met, then a new I-140 would be required (including a new labor certification, in the EB-2 and EB-3 cases).
In order to apply for I-485 portability, you have to complete Form I-485J, also known as Supplement J to Form I-485 [37]. Form I-485J can only be filed once Form I-485 has been pending for at least 180 days and a new job offer exists in the same or a similar occupational classification. You can file Supplement J prospectively in order to check whether USCIS considers your new job offer to be valid for porting, or you can file it when USCIS asks for it (such as in response to an RFE or NOID [38], or by bringing it to the interview). Some people have reported that Supplement J simply gets lost in the shuffle when filed prospectively, so this is not necessarily recommended. If you have some doubt about whether the new job offer is similar enough to the I-140 job offer, and the best strategy for filing Supplement J in your case, consult your prospective new employer's immigration attorney prior to accepting an offer. If you don't trust them, consult an attorney independently as well.
If you have filed Form I-485 based on an I-140 that was concurrently filed or pending, it's possible that once the I-485 has been pending 180 days, the I-140 is also still pending. In that case, you are still eligible for portability.
When you submit Supplement J, if your I-140 is still pending, USCIS will first examine the facts to determine whether or not the I-140 would have been approvable if it had been adjudicated at the 180 day mark. If so, the I-140 will be approved, and then USCIS will adjudicate Supplement J. If the I-140 is denied, then portability cannot be granted. [38][39]
To be more precise, when USCIS receives a Supplement J requesting portability, but the underlying I-140 is still pending, USCIS will approve the I-140 if it determines that:
- the ability-to-pay requirement was met on the date when the I-140 was filed (not necessarily after), and
- all other requirements for I-140 approval were met on the date when the I-140 was filed and continued to be met until the I-485 had been pending 180 days. [17][39]
Porting with a pending I-140 is considered risky. Even if you believe that the I-140 should be approved, it's possible that USCIS will issue an RFE on the I-140, as the law firm acting on behalf of the I-140 employer may have made a mistake such as forgetting to submit some required document. (There are also allegations that USCIS sometimes asks for documents that shouldn't actually be required.) In that case, it's the I-140 employer's responsibility to provide the missing evidence in order to respond to the RFE, and they may not be interested in doing so for a former employee. If the RFE is not adequately addressed, the I-140 will be denied, and the applicant would have to start over with a new I-140.
A revoked I-140 cannot be used as the basis for I-485 portability [40] and the revocation of the I-140 will therefore jeopardize a pending I-485 based on that I-140. However, if the withdrawal occurred when the associated I-485 had already been pending for at least 180 days, then the applicant retains eligibility for portability [17][20][48]. In other words, once the applicant hits the 180 day mark and becomes eligible to port their I-485, the original I-140 sponsor can no longer prevent portability by withdrawing the I-140.
If USCIS finds that an I-485 has been pending for at least 180 days at the point when the underlying I-140 is withdrawn, USCIS will send a Notice of Intent to Deny (NOID) on the pending I-485 case because it is no longer based on a valid job offer [38][46]. In general, the applicant will be given 30 days to respond to an NOID. They will be expected to submit evidence of a new qualifying offer of employment
[46], which is done using Supplement J [38]. If the applicant is unable to provide satisfactory evidence of a qualifying job offer (for AC21 portability purposes) before the NOID response deadline, the I-485 will be denied. (Note that the deadline is not 30 days after the petitioner withdraws the I-140. It is 30 days after USCIS sends the NOID.) However, if the applicant provides a satisfactory response, USCIS will consider the I-485 to be ported to the new job offer.
If USCIS finds that the I-485 has not been pending 180 days at the time when the I-140 is withdrawn, then there is a gap in eligibility between the time of the I-140 withdrawal and the time when the immigrant would become eligible for AC21 portability (i.e. 180 days after the I-485 filing) because a job offer is required for EB immigration, but the job offer has been rescinded. Any gap in eligibility for an immigrant benefit between the time of filing and the time of adjudication generally results in a denial [49]. Thus, USCIS will generally deny the I-485 in this situation. [46][48]
Note that we have to be careful to distinguish between the approval status of an I-140 and what happens to the I-485. If the I-485 has been pending less than 180 days but the I-140 has been approved for at least 180 days ago, then the I-140 is not revoked by the withdrawal [20] and it will remain valid for various purposes such as post 6th year H-1B extension eligibility. However, even though the I-140 is not revoked, the job offer is rescinded prior to the date when the immigrant can use AC21 portability. USCIS guidance is not totally explicit on this matter, but appears to state that the I-485 will be denied even though the I-140 is still approved [48].
If the immigrant finds out that the petitioner has submitted a request to withdraw the I-140 less than 180 days after the I-485 was filed, then the immigrant should assume that the I-485 will be denied, even if USCIS has not taken any action as of 180 days after filing. This is because USCIS will note the date on which the I-140 withdrawal request was received, and will eventually review it when they are adjudicating the I-485 (whenever that happens to take place). For example, the following nightmare
scenario is possible:
- Forms I-140 and I-485 are filed concurrently on April 1, 2019.
- On April 16, 2019, USCIS approves Form I-140.
- On June 14, 2019, the beneficiary is laid off and the employer withdraws the I-140. USCIS receives the withdrawal request, but does not process it immediately (and therefore does not issue any online update or send back any written correspondence).
- On August 3, 2019, the beneficiary starts work at a new employer.
- On December 1, 2019, the beneficiary attends the interview for their Form I-485, bringing along a signed Supplement J requesting portability to the new job offer as is standard practice. The beneficiary shows the Supplement J to the officer, but the officer explains that since the original I-140 was withdrawn on June 14, 2019, it is considered revoked as of June 14, 2019. Because of this, portability could not be used even though the interview date is more than 180 days after the I-485 was filed. Consequently, the officer denies the form I-485.
Please keep in mind, however, that this only applies to the I-140 that is used as the basis for the I-485. If any earlier I-140s, which were solely used for priority date retention, were withdrawn, then this would not affect the I-485.
Previously, we discussed the fact that it is still possible, although risky, to use AC21 portability if the I-140 is still pending. It is, however, risky to do so, since the I-140 must be approvable
in order for this to succeed, and the beneficiary cannot know for sure that the I-140 is approvable until USCIS actually approves it.
Beneficiaries may also be interested in the scenario where (either because their employment has been terminated, or for some other reason) the I-140 petitioner chooses to withdraw the I-140 before USCIS makes a decision. This scenario is similar to the previous one, and is explicitly discussed in the USCIS Policy Manual. The rule is that if the withdrawal occurs before the I-485 has been pending 180 days, then the I-485 is denied; but if the withdrawal occurs after the I-485 has been pending 180 days, then USCIS may determine that it is approvable (despite the fact that the original petitioner has withdrawn it) and permit the beneficiary to port their I-485 [48]. Again, it is risky for a beneficiary to attempt such porting, because they cannot be sure that the I-140 was approvable. However, if a beneficiary has ended up in this situation despite their best efforts, then attempting to port may help them receive their green card sooner than asking a new employer to start the PERM/I-140 process over again.
As discussed in the previous question, if the I-140 is withdrawn, then the I-485 will be denied unless, at the time the withdrawal request was submitted, the I-485 has already been pending for at least 180 days. However, there is an additional scenario that deserves some elaboration: the case where the employee is terminated (so that, in reality, the intent to employ no longer exists) but as a courtesy to the terminated employee, the employer chooses not to withdraw the I-140. This situation is common, since there is no legal requirement for an employer to withdraw an I-140 once it decides it no longer wishes to employ the beneficiary.
For example, suppose that Form I-140 and Form I-485 are filed concurrently on Oct 1, 2019 with premium processing for the I-140. The I-140 is approved on Oct 16, 2019. On Jan 2, 2020, the employee is fired and it is clear that they will not be rehired, but the employer does not withdraw the I-140. In this case, what will happen to the employee's pending I-485?
USCIS might become aware of the termination (for example because the employee had been in H-1B status, and the H-1B petition is withdrawn following termination), or they might not. However, USCIS will not, in general, be aware that the future job offer that is required for EB immigration has been withdrawn. (Only formal withdrawal of the I-140 would tell USCIS that the future job offer has been rescinded.) Because of this, USCIS might have to send a Request For Evidence (RFE) to ask the beneficiary to clarify whether they still have a qualifying job offer. They will typically be given 12 weeks to respond to the RFE, which means that by the time the response is due, the I-485 will typically have crossed the 180 day pending mark already, and the beneficiary will have had the opportunity to find a new job offer to port their I-485 to.
A USCIS policy memo from 2005 [41] states that the fact that the employee was terminated should not, in and of itself, be the basis to deny a portability request, since the I-140 and I-485 are based on an offer of future employment. It then goes on to state:
However, in all cases an offer of employment must have been bona fide. This means that, as of the time the I-140 was filed and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.
Thus, it appears that the USCIS policy described in the memo is as follows: when USCIS is considering a portability request, where the I-140 has not been withdrawn but the employee has left the sponsoring employer, USCIS will determine whether the intent to employ the applicant existed at two points in time: (1) the time when the I-140 was filed, and (2) the time when the I-485 was filed. USCIS will not require the beneficiary to submit evidence that the original job offer continued to be available through the 179th day after I-485 filing. Thus, portability would still be possible in the example scenario!
This policy was made more explicit by the AC21 regulations, which explicitly state that there must be a valid job offer "at the time the application [...] is filed and at the time the [...] application [...] is adjudicated" [37]. This requirement thus doesn't appear to hold at any time in between. Thus, it is acceptable for the applicant to have lost their job offer at some point before the 180 day mark, provided that they then replace it with a new job offer (in the same or a similar occupational classification) at some point after the 180 day mark, before the I-485 is adjudicated.
This appears to be an exception to the general rule that an applicant must maintain eligibility continuously from the time of filing (an I-485 or some other form) until the time of adjudication [49]. It seems that USCIS considers that an actionable break in eligibility does not actually exist as long as the I-140 has not actually been withdrawn. So long as the I-140 remains intact until the I-485 has been pending 180 days, the applicant can port after the 180 day mark is reached. Murthy Law Firm has reported that they have had clients who have successfully ported in this situation.
(There is another situation where a gap in eligibility does not result in I-485 denial: when the applicant must find a new job offer in order to use AC21 portability because their previous job offer was rescinded more than 180 days after the I-485 was filed. In general, this will take some time: for example, if the I-140 is withdrawn more than 180 days after the I-485 is filed, the applicant might take a month to find a new job, after which they could submit a supplement J and port their I-485 to the new job offer. USCIS does not require the immigrant to have a job offer at all times during the pendency of the I-485, because such a requirement would make it almost impossible to use AC21 portability. It would be an unnecessarily restrictive reading of the portability statute that is unlikely to be what Congress intended.)
It should be emphasized, however, that USCIS could, at any point, ask the applicant and their employer to re-affirm the existence of a qualifying job offer by issuing an Request for Evidence (RFE) [34][38]. Generally, you will have 12 weeks to respond to an RFE. So, if the applicant happens to leave their employer and USCIS happens to issue an RFE early enough in the I-485 process—such that the 180 day mark will not be reached by the time the deadline for the RFE expires—the applicant will find themselves out of luck as they will not be able to request portability. The I-485 would be denied in such a situation.
An employment-based green card, or admission on an employment-based immigrant visa, is granted on the basis of future employment. In all cases, the alien must have the intent to engage in the qualifying employment after lawful permanent resident status is granted [26][33].
In the case of EB-1B, EB-1C, EB-2 (except NIW), and EB-3 immigrants, the regulations [33] state that:
In all cases, the applicant and his or her intended employer must demonstrate the intention for the applicant to be employed under the continuing or new employment offer (including self-employment) described in paragraphs (a)(1) and (2) of this section, as applicable, within a reasonable period upon the applicant's grant of lawful permanent resident status.
Many lawyers recommend staying at the sponsoring employer for 6 months after the green card is approved (or 6 months after admission using an immigrant visa, as the case may be). Some lawyers recommend a year. [35] There is no specific amount of time specified in the regulations. However, some individuals have reported that staying for less than 6 months caused them to be questioned about their actions when they eventually applied for naturalization.
For example, in 2019, a user on Blind posted that 7 years ago, they had left their company after 3 months, and when they applied for citizenship, they were questioned about it by an immigration officer. The immigration officer was satisfied once he saw a letter the applicant provided stating that the job they switched to was for the same manager and the same responsibilities as the job offer their green card was based on. [36]
Some observers believe that the passage of AC21 and its I-485 portability provision abrogated the requirement to stay with the sponsoring employer after I-485 approval. Their argument is that since one is allowed to switch employers 6 months after Form I-485 has been filed, and this does not cause the I-485 to be denied, it ought to be the case that switching after Form I-485 has already been approved should, likewise, not invalidate the approval of the I-485. However, this argument is contradicted by the clear wording of the regulations [33] (previously quoted). Paragraph (a)(3) states that the intent to be employed "within a reasonable period upon the applicant's grant of lawful permanent resident status" must exist with respect to either the original job offer on which the adjustment of status was based, or the new employment offer used for porting the I-485. That is, whichever job you have at the time of approval—whether it was the job offer in the I-140, or a new job offer that was used for porting—that is the one you must have the intent to remain at "within a reasonable period".
Note that paragraph (a) also states:
An alien who has a pending application to adjust status to that of a lawful permanent resident based on an approved employment-based immigrant visa petition filed under section 204(a)(1)(F) of the Act on the applicant's behalf must have a valid offer of employment based on a valid petition at the time the application to adjust status is filed and at the time the alien's application to adjust status is adjudicated, and the applicant must intend to accept such offer of employment.
Here, again, we see that the requirement to have a valid offer of employment, which the applicant intends to accept, applies both at the time of the I-485 filing and at the time of approval. In conclusion: despite the AC21 portability provisions, it remains true that the I-485 applicant, who was approved on the basis of a particular job offer, must be employed in that job for some time after approval.
EB-1A and EB-2 NIW immigrants, if applying for adjustment of status, must sign a statement affirming that they intend to work in the occupational field of extraordinary or exceptional ability, respectively [34]. Again, there is no specific length of time required, but one could imagine that switching one's career to a totally different occupational field within 6 months would raise some red flags.
[1] INA 212(a)(5)(A)(i) (8 USC §1182(a)(5)(A)(i))
[2] 8 CFR §204.5(k)(4)(i)
[3] 8 CFR §204.5(l)(3)(i)
[4] 20 CFR §656.17(e)
[5] 8 CFR §204.5(a)
[6] 8 CFR §245.2(a)(3)
[7] 8 CFR §204.5(d)
[8] 8 CFR §245.1(g)(1)
[9] The bar for "exceptional ability" is not as high as the bar for "extraordinary ability".
[10] INA 203(b) (8 USC §1153(b))
[11] INA 202(a)(2) (8 USC §1152(a)(2))
[12] AC21 §104(c)
[13] 8 CFR §214.2(h)(13)(iii)(E)
[14] 8 CFR §214.2(h)(13)(iii)(A)
[15] 8 CFR §204.5(e)(1)
[16] 8 CFR §204.5(e)(2)
[17] See also "Retention of EB-1, EB-2, and EB-3 Immigrant Workers...", 81 FR 82398, where this is stated explicitly.
[18] INA 204(j) (8 USC §1154(j))
[19] USCIS Policy Memorandum 602-0122.1
[20] 8 CFR §205.1(a)(3)(iii)(C)
[21] INA 204(a)(1)(E) (8 USC §1154(a)(1)(E))
[22] 8 CFR §204.5(h)(3)(ix)
[23] 8 CFR §204.5(k)(1)
[24] Ibid., (k)(4)(ii)
[25] INA 212(a)(5)(D) (8 USC §1182(a)(5)(D))
[26] 8 CFR §204.5(h)(5)
[27] Ibid., (i)
[28] Ibid., (j)(5)
[29] INA 204(a)(1)(F) (8 USC §1154(a)(1)(F))
[30] USCIS-AFM 23.5(f)(1), archived May 11, 2020
[31] 8 CFR §245.25(a)(1)
[32] 8 CFR §204.5(j)(3)(i)
[33] 8 CFR §245.25(a)(3)
[34] Form I-485 Instructions
[35] Murthy Law Firm: Changing Employers After Receiving Employment-Based Green Card
[36] https://www.trackitt.com/usa-discussion-forums/i140/2040986077/switching-jobs-after-i-485-approval
[37] 8 CFR §245.25(a)
[38] I-485 Supplement J Instructions
[39] 8 CFR §245.25(a)(2)(ii)(B)
[40] Ibid., (a)(2)(iii)
[41] Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313))
[42] See [17], but note specifically the wording (emphasis mine): "This provision was intended to build upon existing DHS policies that have governed the validity of Form I-140 petitions in the event of withdrawal or business termination before and after beneficiaries are eligible to change jobs or employers under INA 204(j)."
[43] 9 FAM 502.4
[44] 8 CFR §245.2(a)(2)(i)(B)
[45] 81 FR 82416
[46] USCIS-AFM 20.2(c), archived April 11, 2020
[47] The US does not issue green cards to these individuals while they are still employed, since it would be inappropriate from a foreign policy perspective. They must be retired so that the US does not have the appearance of compromising their ability to perform their official duties. However, this restriction does not apply to the children of these individuals, who may receive green cards after completing 7 years of residence.
[48] 7 USCIS-PM E.5.B.3
[49] 8 CFR §103.2(b)(1)