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Employment obligation to employer after green card approval


Employment obligation to employer after green card approval

Are you considering accepting new employment and want to know what your employment obligation to employer after green card approval is? What if you are being terminated shortly after green card approval?

The short answer is, once the foreign employee has received their green card, there is no minimum period the employee is obligated to work for the employer who sponsored their employment-based green card. The critical question is whether there was a bona fide job offer and whether the employee intended to work for the sponsoring employer at the time the employer filed the adjustment of status application (Form I-485).

PERM and adjustment of status is a lengthy process. A variety of circumstances can occur that may result in the employment termination by the time you receive your green card. Absent fraud, it should not matter whether the company terminated your employment or whether you decided to leave the company.

In cases of an employment-based green card, can an early termination of your job affect your naturalization success?

An early departure from your employment after you have received your green card may raise some doubt about your “intent” and you may get questioned about it during your naturalization interview.

If the USCIS ever questions your “intent,” various factors can help you establish a good faith intent to work for the sponsoring employer when your adjustment of status was filed. For example: you worked for the same employer prior to your adjustment of status application; the company had downsized and was forced to let you go; a medical condition, etc. To substantiate your explanation during the interview, it would be helpful to show any relevant records relating to your employment offer, time with the company, severance package, or cause for termination of employment.

Further, even Congress had recognized that life happens during the long employment-based immigration sponsorship process. Congress had passed the American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”). The rule allows a worker with a pending I-485 Adjustment of Status (or often referred as a green card application) accept a “same or similar” job with another employer after the I-485 has been pending for over 180 days.

The USCIS has stated that under AC21, if you have a pending Form I-485, you “may be able to change the job or employer on which your Form I-140, Immigrant Petition for Alien Worker, is based as long as the new job offer is in the same or a similar occupational classification as the job for which the I-140 petition was filed.” In order for you to change the offer of employment or employer while your Form I-485 is still pending with the USCIS, the I-485 must have been pending for 180 days or more.

The USCIS would evaluate whether job new job is “same of similar” based on the following factors: same/similar job duties, skill, experience or education, salary and the DOL occupational code, among others.

In conclusion, if you want to change your employer or employment fields entirely or quit working all together after you receive your green card, the main question is whether you intended to work for the sponsoring employer at the time your green card application was filed. Thus, if you clearly intended to work for the employer that sponsored your green card process, there is no specific time period during which you are required to work for that employer after you become a permanent resident.

In any situation, you should consider consulting with an immigration attorney before making any employment changes to help you make an informed decision about how to proceed further.

By |2018-11-09T04:30:02-10:00March 9th, 2018|Categories: Immigration Articles|