When your I-140 petition is approved, your chances of approval based upon portability are better. There could be a number of reasons USCIS denied your National Interest Waiver request, including: If your request is denied by the USCIS, you may be able to appeal the decision with help from your immigration representative. If you request to change jobs or employers under INA 204(j) while your Form I-140 is pending, we must approve your Form I-140 before we may approve your portability request. If, however, the USCIS revoked the I-140 petition due to fraud, misrepresentation, or a material error in the approval, the USCIS will not honor the request for priority date retention. Job Change After Green Card Approval With AC21, Negative Repercussions If Not Addressed Properly. The first stage is the PERM filing with the U.S. Department of Labor (DOL), when the employer must establish that no qualified U.S. worker is available for the position. Home > Blog > Employment Based Immigration. In all green card cases (with the exception of the EB-1A), the first step is to acquire a PERM Labor Certification, which involves having your employer go through a recruiting process to make sure that no qualified U.S. workers are available for your position. If USCIS approves the I-140, you can request to extend your H-1B status for up to three years. This expectation has been reiterated in later guidance memoranda. Answer (1 of 2): Yes, you can. |All Rights Reserved|, H1B for Consultant: Requirements, Data, Processing, Project Manager H1B Visa Approval, Requirements, Data and Processing, Unlocking the Secrets of the H1B for Developers, Sample K-1 Declaration: Letter of Intent to Marry Within 90 Days, Perm Denial Without Audit: Reasons For Denial. Employment Immigration Attorney Located In Fairfax County. For example, if you move into a more senior but related position which is non-managerial, USCIS will use the criteria explained above to determine whether you are primarily responsible for managing the same or similar functions of your original job or the work of persons whose jobs are in the same or similar occupational classification(s) as your original position. 47-202[2]: The sixth digit, 2 represents the detailed occupation, which only includes stonemasons. Answer 2. We find that, in most cases, it is the safest approach. USCIS aims to determine in all cases whether a new position is in the same or similar occupational classification as the original job offer. However, USCIS will not necessarily conclude that the two positions are the same or similar based solely on whether the wages are the same or not. However, he soon loses interest in the job and instead desires to become an electrical engineer instead. Though, this time greatly depends on the assigned USCIS Service Center and the adjudicating officer. The safe approach is to avoid this scenario by working for the sponsoring employer. The best way to ensure that you are on the best path to your green card is to consult an immigration attorney. You must be a practicing physician in one of these areas: family medicine, internal medicine, pediatrics, obstetrics, or psychiatry. The I-485 is based on the I-140, however, which is the employers filing. How do I exercise the portability provisions? Yes. Answer (1 of 7): You can change your employer right after your I-140 got approved with current employer, but here is the point i suggest you to be with current employer for 180 days after your approval with them. However, if you change positions drastically or careers, be prepared to answer USCIS regarding your change when you file for naturalization. Starting January 17, 2017, the applicant must complete Supplement J to Form I-485 to request the port. Yes, you can still file the NIW application. Again, the issue isnt about the change of career or job, but whether you maintain the NIW requirements in your new career. Trackitt: Immigration on the App Store. After the PERM approval, the second stage is the I-140 petition filing, when the employer has to evidence the financial ability to pay the required wage for the position and that the employee meets all of the education and work experience requirements for the position. You need to work for five years in a medically underserved area in the U.S. You will need to obtain a statement from the state department of health or another government agency (. ) This is why you must be sure to do your due diligence and let your case strike the right balance. How USCIS Determines Same or Similar Occupational Classifications for Job Portability Under AC21. To continue working legitimately while the petition is pending, you may file, Form I-765 for an employment authorization document. In labor certification substitution cases, the employer was required to revoke the previously approved I-140 for the original beneficiary in order to substitute a new beneficiary. Remember that the NIW has two major eligibility routes: having an advanced degree or having exceptional ability in your field. An added benefit of waiting 180 days after I-140 approval is the ability of an H-4 spouse to continue to obtain H-4 EADs on the basis of the approved I-140 petition, even if the I-140 has been withdrawn or the employer goes out of business after 180 days. However, if your job offer is not in the same occupational classification as your current position, you will need to file for a new I-140 petition and PERM labor certification with the same broad occupational code. However, if you are changing jobs after National Interest Waiver approval, then you may encounter difficulties with proving that your new occupation is in the national interest. Youre changing your position with your current employer. AC21 does not contain any limitations regarding multiple job changes. Your PERM is for a distinct position for a specific employer in a particular geographic location. While the I-485 may take several months or even years before a decision depending on your priority date, the I-765 can be processed within a few months allowing you to continue using it to work or even seek employment. It is important to note that physicians must work in their field in an underserved area for the first five years of their stay under EB-2 status in order to qualify for an NIW. Yes, you can still file the NIW application. If, while waiting for your date to be current, you gain eligibility for a higher preference green card, a new sponsoring employer can file a new petition and PERM and still retain your priority date. The longer you can stay with your petitioning/sponsoring employer, the better your case is. Q. I am afraid that, if I change my job, my employer will try to harm my green card case. The information contained on this website is for general information purposes only and is not a substitute for legal advice and does not create an attorney-client relationship. 2. as well as a new application for your NIW. The new job must be in the same or similar occupational field as the previous job in the original I-140 petition, and the employer must have the actual intent to employ the beneficiary after their adjustment of status is completed. Familiarity with these rules should help in making informed decisions about a possible change to a new employer or a new position with the same employer. Q. In other words, how you present or argue your case. Be sure to indicate on the petition that you want to retain your priority date. These two green cards allow you to do those: Is EB-2 NIW eligible for premium processing? Yes, you can change jobs after your I-140 is approved, but only after when you secure a new employer who will first file a new H-1B petition on your behalf, obtain a new period of 3 years (due to the fact that you'll have an approved I-140 from your first employer then) and then restart the whole "green card" PERM process anew with the filing of its own PERM and I-140. Generally, it is a good idea to wait until obtaining a green card before changing employers. Those who wish to go around the. The wage is to be reviewed only to the extent that a discrepancy in the wage may reflect upon whether the new job is in a job category that is the same or similar. Legal services are provided by VisaNation Law Group PLLC, a Florida professional limited liability company. . Yes, you may change employers after your NIW has been approved. Your Form I-485 Application to Register Permanent Residence or Adjust Status must have been pending for at least 180 days, and your Form I-140, Immigrant Petition for Alien Workers must have been approved or filed together with the I-485. My attorney suggested I needed to file H1B Amendment, since my current H1B is active till Dec 2023. 703.348.8448 | Fax. This means the I-140 and the I-485 may be filed at the same time, or the I-140 may be filed first; the I-485 may be filed while the I-140 is still pending. The only implication is that there is a non-refundable fee attached to each petition you file. However, if the green card category you are pursuing does not have the option of premium processing (such as the EB-1C), H-1B time recapturing, according to S. 31.3 (g)(9) and (14), is another option you can leverage. What are the Penalties for Form I-9 Violations? Can I still file an EB-2 NIW? Another option is to ask your employer to file an H-1B on your behalf. However, it can affect your naturalization application if your job history raises red flags with the immigration officer adjudicating your case. The USCIS, however, has mentioned that a great variation in salary or pay could indicate that the job duties are not similar and this could pose a potential problem in some cases. Once youve received USCIS approval and filed the I-140 petition, youll be eligible to change jobs. Inspect and repair boiler fittings, such as safety valves, regulators, automatic-control mechanisms, water columns, and auxiliary machines. What is Temporary Protected Status (TPS)? 500, Falls Church, VA 22041 | Disclaimer | Website by Omnizant. Will that work? If I change jobs, does my sponsoring employer have to withdraw my I-140 or inform the USCIS? Legal services are subject to a separate attorney agreement between VisaNation Law Group PLLC (formerly SGM Law Group PLLC) and you. No occupation will be assigned to more than one category with six digits. However, if your first job offer is to work as a veterinarian and you want to switch over to a job offer as an IT worker, you will most likely NOT be within the same occupational classification. now I am relocating to State TX and will be working remote (WFH) with same employer A and same role. Although the NIW requirements, as in the Matter of Dhanasar, state that a petitioners education background is one of the factors that can help determine if they are well-positioned to advance their proposed endeavor, it doesnt stipulate a Ph.D. as a requirement. If you are in the process of obtaining an NIW for your. So, what are you waiting for? In fact, it is advantageous to do so because if one petition is denied, chances are the other one will be approved. Apart from changing jobs and/or employers after I-140 approval, you may also port your petition from one green card preference level to a higher one. You will need to present proof, such as boarding passes and hotel reservations, as supporting evidence of time spent outside the United States. Can I use AC21 portability? Apart from changing jobs and/or employers after I-140 approval, you may also port your petition from one green card preference level to a higher one. The following are NIW jobs that qualify (not a comprehensive list): This list is not all the NIW jobs that qualify. The new petition must reflect the latest achievements that now qualify you for the higher preference category. I don't recommend it. USCIS uses a two-part evaluation method to determine whether the evidence submitted by an NIW petitioner establishes that the proposed endeavor will be national in scope and whether the national interest will be adversely affected if a Labor Certification were required. First, USCIS will evaluate the submitted evidence to decide which evidence meets the required regulatory criteria. . The only implication is that there is a non-refundable fee attached to each petition you file. Who is Not Protected under INA Section 245(i)? How Do I Prevent Discrimination as an Employer? You may request to port your job offer using the Form I-485, Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j). You must also keep in mind that the period starts right from the receipt date of I-485. The team is friendly, professional, and wants to help. 2023 Murthy Law Firm. Microsoft MMLk51. Unlike the H1-B, there is no requirement for the employer to notify the USCIS of termination of the employment or withdraw the I-140 petition. There are 2 options for you to begin your LPR process once your I-140 is approved. You may also file. At the same time, there have been people with lesser achievements whose petitions were approved because of their advocacy. 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