Working for Sponsoring Employer After Getting Employment Based Greencard

Working for Sponsoring Employer After Getting Employment Based Greencard

All employment based green card applicants must keep on working for the sponsoring employer even after applying for an adjustment of status or receiving a green card. EB-1 petitions for “persons of extraordinary ability” and a self-petitioned NIW beneficiary may change employers (because a job offer is not required under those categories) while an employer-petitioned beneficiary may not (because job offer is required). After getting an EAD, as long as he/she keeps working for the sponsoring employer, he/she can have a part-time job or even open a business. The primary applicant’s dependents can work for any employer, as long as the dependent has an EAD on his/her own and the primary applicant’s application for adjustment of status is still pending.

The employee should work not only for the same employer but also keep doing the original job offered. If the job title or job duties change significantly, it is considered a job change and a new labor certification is required and hence a new I-140 is also required. Please note that normal raises in salary are not considered a job change.

In today’s dynamic market, many people want to know how long does an employee who receives an employment based green card needs to work for the same employer after getting the green card. There is no precise answer to this question. The law states that if the employee leaves within 2 years, the employee has the burden to prove that he/she accepted the job offer in good faith and did not intend to leave after receiving permanent residence. If it is more than 2 years, the burden comes to the U.S. Citizenship and Immigration Services (USCIS) to prove that. The theory behind a green card through offer of employment is that an employee is accepting a job on a “permanent” basis. However, “permanent” obviously does not mean forever, but it also does not mean that the person leaves the company the day he/she gets the green card. Each case would be different depending upon the employee-employer relationship. In general, staying with the same company for about 6 months to 1 year should be enough indication of permanency. “Permanent” means that at the time the employee becomes a lawful permanent resident neither the employer nor the employee had any plans to change the employment relationship described in the labor certification or I-140 petition. If you leave too soon, the USCIS may claim that you did not intend to take the job on a “permanent” basis. If the employer (or even a jealous co-worker) is dissatisfied with you leaving too soon, they can file a complaint with the USCIS and the USCIS may either take action or not depending upon the circumstances. The USCIS may also find out about you leaving too soon while later applying for citizenship or petitioning for relatives.

If the USCIS finds out that the employee was just waiting for his/her immigration to be completed before jumping to a new job, they are likely to charged with fraud. If, on the other hand, it appears that the employee really did intend to stay with the petitioning employer indefinitely at the time of immigrating, but a legitimate reason later developed for leaving (like employer’s business took an unexpected downturn and the employer had to lay off workers), then there should be no problem.

Even if the employer does not mind the employee leaving immediately after getting the green card, it is not OK for USCIS. Both employer and employee should have good faith to have that employer/employee relationship on a “permanent” basis.

If the AC21 portability rule does not apply, until the person gets the green card, if he/she is laid off at any time, he/she would have to start the green card process again. If the labor certificate is approved, it won’t be valid as it is for a job in the future and that job must be available now, which is not the case. So labor certificate would be invalid. Similarly I-140 also would be invalid, if it has been approved. The person can use his/her priority date from the previous company if his/her I-140 was approved before he/she got laid off. Even if the person has applied for adjustment of status and received EAD, he/she can only work additionally for any other employer as long as he/she keeps working for the sponsoring employer. So if he gets laid off, everything including his/her H1B visa, labor certification, I-140, I-485 application, EAD, Advance Parole are invalid. If the person is maintaining valid non-immigrant status, he/she has 60 days to leave the country. If the person is on EAD/Advance Parole, he/she has to immediately leave the country.

Person can change the employer under AC21 portability rule if the Adjustment of Status (I-485) application has been pending for more than 6 months and certain conditions are met.

For labor certification based green card, if the employee gets transferred from the original job location outside the normal commuting distance (approximately 35 miles but depends upon the specific metro area), new labor certification is needed even if the job duties remain the same. For non-labor certification based green card, transfer to different location is fine as long as the job duties remain the same.

If the sponsoring employer simply changes its name to better reflect the business or for other similar business and everything else remains the same, no new procedure is required. Everything remains the same as earlier. But in all the subsequent paperwork, standard letter regarding the name change should be included.

If the sponsoring employer gets merged or gets bought by another company, whether the whole green card needs to be done again or not depends upon the nature of the merger or buy. If the new company is the successor of interest and takes over everything and your job duties remain same at the same location (job location change within the commuting distance of original job location is fine), the green card process does not need to be done again, otherwise everything needs to be done from scratch. (If I-140 is approved, the previous priority date can be used, though.)

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