No. In the same vein, if the presentation is too short and unconvincing, it will be difficult to persuade the adjudicating officer. Seesection 204(j) of the Immigration and Nationality Act (INA), which was enacted from section 106(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), for more information. Not if it is pending. We have all learned a lot about AC21 since it became law in October 2000. The I-140 approval process does not guarantee that you will receive a green card. How Do I, the Employer, Examine Documents? 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. The process will move smoothly from your current employer to the new one. Legal services are subject to a separate attorney agreement between VisaNation Law Group PLLC (formerly SGM Law Group PLLC) and you. If youre considering a change of career after your I-140 was approved, you should go for Herman Legal Group. 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. 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. ANSWER Watch the Video on this FAQ: Job Change after I-140 Approval, Before I-485 Submission Video Transcript You have to start your green card all over again, no question about that. 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. In our experience, yes. As long as your new job is identical or very similar to the job that you used for your NIW, you should be able to transfer with the help of an immigration attorney. In that situation, if the foreign national has not provided information about the new job, then the USCIS will issue a Notice of Intent to Deny (NOID). If USCIS approves the I-140, you can request to extend your H-1B status for up to three years. Yes, USCIS began premium processing for EB-2 National Interest Waiver (NIW) I-140 petitions received on or before August 1, 2021. Disclaimer: Website, software platform and administrative support are provided by VisaNation Inc., a Delaware corporation. The safe approach is to avoid this scenario by working for the sponsoring employer. Legal services are provided by VisaNation Law Group PLLC, a Florida professional limited liability company. The most important thing is to present your evidence to USCIS in a convincing way. You can include information related to your educational background/skills, stories of success in your field, a plan of action for your endeavor, records showing past accomplishments, the interest of shareholders/customers/stakeholders, etc. The team is friendly, professional, and wants to help. Permanent for the sake of immigration means an indefinite basis. Moreover, the law suggests the employee intends to remain at the job indefinitely at the point of approval. Can My Spouse Apply for H-4 EAD With the Approved I-140? It may be best to discuss potential issues that could be created by frequent or repeated job changes in the AC21 context. An approved I-140 petition remains valid, once the I-485 application has been pending for 180 days, even if the employer requests the revocation of the I-140 petition. While many change their employers using the Employment Authorization Document (EAD), this is not the only way to make this change. 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. Looking for U.S. government information and services? 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. Many employers do not withdraw I-140s upon employment termination. The AC21 law uses the terminology same or similar job classification. The Legacy INS June 2001 guidance refers us to the U.S. Department of Labor system of occupational classification as a guideline. USCIS will investigate whether you had the intention to file for that sponsoring employer while filing your application. Yes, you can still file the NIW application. 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. Answer 2. In fact, it is advantageous to do so because if one petition is denied, chances are the other one will be approved. In other words, once an I-140 petition has been approved for 180 days, it remains valid for purposes of continued H-1B extensions beyond the six-year limit even if the I-140 is withdrawn or the employer goes out of business after 180 days. Where no I-485 application has been filed, priority date retention occurs when the new employer files a new PERM labor certification on behalf of the employee and requests that the previous priority date be honored at the time of filing a new I-140 petition. For you to change the offer of employment or employer, your Form I-485 must have been pending with USCIS for 180 days or more. Your petitioning employer may decide to send a withdrawal notice to USCIS, especially if you did not part ways on good terms. The term port or porting means to change the offer of employment from one job or employer to another job or employer in a way that allows an applicant to remain eligible for a Green Card without having a new Form I-140, Immigrant Petition for Alien Worker filed, for the applicant. and schedule your comprehensive consultation today. What is the most important factor in proving NIW eligibility? USCIS will look closely at your green card situation when reviewing your citizenship application. The National Interest Waiver is a way for EB-2 applicants (i.e. Direct cleaning of boilers and boiler furnaces. The value of such notifications has been confirmed over time. If you are in the process of obtaining an NIW for your EB-2 green card, then changing your job may require that you file a new I-140 as well as a new application for your NIW. The SOC system is organized using codes, which generally consist of six numerical digits. The employer with whom your approved I-140 can revoke the approved I-140 if you tran. The best proof that a job offer is valid, however, is working for the sponsor. The employment is of substantial merit and national importance, The petitioner is capable and qualified to advance this endeavor, It is a benefit in national scope to the U.S. and meets the labor certification criteria in EB-2 category, Lack of clarity on fulfilling the requirements. It was a future job offer. AC21 does not require that one leave the sponsoring employer. To continue working legitimately while the petition is pending, you may file, Form I-765 for an employment authorization document. USCIS aims to determine in all cases whether a new position is in the same or similar occupational classification as the original job offer. An approved I-140 is usually employer- and job-specific. Emily Neumann practices immigration law at Reddy & Neumann, P.C., Houstons largest immigration law firm focused solely on U.S. employment-based immigration. Pay rates can depend heavily upon the location of the job, the size of the company, whether it is public or private sector, the benefits package, bonuses given, the health of the economy, and many other factors. However, if youre planning to switch jobs during the green card process, you should contact a legal professional to help you through the process. This expectation has been reiterated in later guidance memoranda. 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. Additionally, the wage is relevant to demonstrating that the individual will be self-supporting and will not become a public charge.. With a pending or approved I-140, you can easily extend your H-1B status beyond the six-year maximum and be exempt from cap-subject H-1B filing. If you change jobs or receive a promotion, USCIS will determine whether you remain eligible for a Green Card on a case-by-case basis and based upon the totality of the circumstances. Is it the receipt date or the notice date that governs the counting of the 180-day period under AC21? The only issue is that it will require going through the H-1B process, and there may be a delay. A change in employer or job may directly affect a foreign national employees ability to use the approved I-140 petition. You may also file Form I-131 together with your I-485 to get advance parole, which serves as your valid travel document while the I-485 is pending. If this is the route that you wish to take, it is highly recommended that you work very closely alongside an immigration attorney to make sure that your case is waterproof. At the same time, there have been people with lesser achievements whose petitions were approved because of their advocacy. However, many people want to know if changing jobs after National Interest Waiver approval will affect their green card status in the U.S. The new petition must reflect the latest achievements that now qualify you for the higher preference category. The best way to ensure that you are on the best path to your green card is to consult an immigration attorney. You will have the opportunity to present other evidence to convince the USCIS officer that the jobs are similar. The priority date is the date the PERM labor certification is filed, or for schedule A workers, the date the I-140 petition is filed. Can I still use portability? If you can prove that your new career is of national importance and you have consistently advanced your chosen endeavor, you shouldnt have a problem regarding that during your citizenship application. USCIS and DOL treat each petition individually, which means one can submit multiple petitions under various categories simultaneously and the decision on one petition will not affect the other. Filing Tips for Specific Visa Categories that Do Not Require a DOL-Approved Labor Certification. Under AC21 your evidence to USCIS, especially if you did not part ways on good.! Short and unconvincing, it will require going through the H-1B process, and there be! 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