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Transferring To A New Employer: I-140/I-485 Portability

Each year thousands of workers are sponsored by their employers for Green Cards, including in the Washington, DC area. However, with increasingly lengthy processing times and priority date backlogs, employees may face challenges with their prospective employers including the company shutting down, internal managerial conflicts, or even workplace harassment. This can leave workers in a difficult position where they do not want to risk their lawful permanent residence, but also may not be able to continue in the job. Not to fear though, as there may be ways for these workers to leave their employment and still receive permanent residence.

Approved or Pending I-140/Pending I-485

Under INA Sec. 204(j), if an individual has had an adjustment of status (I-485) pending for more than 180 days, he/she can transfer to a new employer and still maintain their original priority (I-140 filing) date. In other words, so long as the adjustment has been pending for at least 180 days, the worker can leave their old job and have a new employer take over sponsorship. To do so the new employment must be in the same or a similar occupation to the underlying I-140. The new employer will also have to submit a supplement to the original filing.

This applies to those with either a pending or an approved I-140. This statute is most beneficial to individuals who have current priority dates on the Visa Bulletin and can concurrently file their I-140 and I-485. This is also beneficial to those who may now be in the adjustment of the status process based on an approved I-140 Petition.

Approved I-140

In 2017, the Obama Administration also provided clarification on job portability where an individual has an approved I-140, is currently ineligible to adjust status, and who's employer withdraws the Petition or whose business closes. Previously, even after an I-140 was approved, if the sponsoring employer withdrew the Petition or the company closed, the I-140 would automatically be revoked. Now, if the I-140 has been approved for at least 180 days and this occurs, the worker can still keep their original priority date.

Similar to the above, once the worker becomes eligible to adjust status, they will file a supplement with the I-140 approval in order to port their employment. Again, the new occupation must be the same or similar to the old position.

This rule is particularly beneficial to workers from China, India, the Philippines, Mexico, and other countries with a backlog for adjustment of status purposes. With the approved I-140, these workers can potentially extend H-1B positions and not worry about losing a Green Card opportunity due to lengthy backlogs.

If you are already in the I-140/I-485 process and feel that you cannot continue with your current employer, you should contact an experienced immigration attorney who can help you determine alternatives to get your Green Card.

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