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H-1 PERM
 
CHANGE OF EMPLOYER IS OK IF ADJUSTMENT OF STATUS HAS BEEN FILED AND PENDING FOR OVER 180 DAYS

 

On August 4, 2003, William R, Yates, Acting Associate Director for Operations with the Bureau of Citizenship and Immigration Services sent a memorandum to the field providing guidance on processing an Application to Register Permanent Residence or Adjust Status regarding the eligibility of changing employers for approved petition for Immigrant worker (I-140).

Change of employer has long been a problem for people pursuing green card through labor certification process. The key problem occurs when a person obtains labor certificate, files I-140 and I-485 adjustment of status application, then for some reason has to change employer.

According to the memo, if an alien is the beneficiary of an approved Form I-140 and is also a beneficiary of a Form I-485 that has been pending for 180 days or longer, then the approved Form I-140 remains valid with respect to a new offer of employment provided the new job is in the same or a similar occupational classification as the job for which the petition was filed. In other words, the alien with an approved I-140 can change employer in the same or similar occupational classification if AOS has been filed and pending more than 180 days.

However, two points merit special attention in the given memo. The first is that if an employer notifies the BCIS to revoke or withdraw the I-140 approval before the I-485 has been pending for 180 days, the approval of I-140 will no longer be valid. Nevertheless, if the revocation happens after I-485 has been pending for 180 days, the approval of I-140 still remain valid, the process will continue and change of employer will not be a problem to the application.

The second is that it is the employee applicant’s responsibility to provide evidence to show that the new offer of employment is in the same or similar occupational classification if all other requirements are met. If the previous employer notifies the Immigration about the revocation of job offer after the I-485 has been pending for 180 days, the BCIS will issue a Notice Requesting for Additional Evidence and Intent to Deny. The applicant then must submit document to prove the existence and nature of the new job offer. If the submitted evidence satisfies the requirement, the procedure will continue. Otherwise, the case will be denied.


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