One of the more common questions we receive from employees and employers alike is whether an employee can change jobs or employers during the Green Card process. One of the first lessons taught in law school is that 99.99% of the time the best answer is “it depends”. Generally, one can change jobs or employers during the Green Card process but it is important to understand each step in the process and how a change can complicate or halt the progress made toward lawful permanent residency.

For purposes of our discussion, we’ll consider the “Green Card” process to include three steps: 1) the Labor Certification or ETA 9089 process, 2) the I-140 or Immigrant Petition for Alien Worker process, and 3) the I-485 or Adjustment of Status to a Lawful Permanent Resident process. We’ll do our best to address changing jobs or employers during each step.

Generally speaking, a company will identify a specific job they wish to fill. They will identify the offered salary and the minimum education and experience they would require to consider an individual for that specific job. They will conduct a proscribed labor market recruitment to identify any qualified, willing, and available US workers for the position. Having conducted that analysis and recognizing that they have identified a non-citizen who is qualified, willing, and available to fill the position, the company files a Labor Certification or ETA 9089 with the Department of Labor.

Upon approval of the Labor Certification, the company then files an I-140, Immigrant Petition for Alien. In essence, this Petition proves the non-citizen is qualified for the position under the terms and conditions of the approved Labor Certification and the company has the ability to pay the wages as certified by the Department of Labor.

Concurrent with filing of the Form I-140 or after the approval of the Form I I-140, Immigrant Petition for Alien, the non-citizen will file an I-485, Application to Adjust Status. This is the actual green card request to the government. Here, the non-citizen must demonstrate they are admissible to the United States as a lawful permanent resident, typically meaning that they still have a qualifying job offer which they intend to take, aren’t criminals, and haven’t committed previous immigration violations.

Notice above that we use the term “company”, and not employer. This is to avoid any confusion that the company engaging in the above described process must be the current employer. While a person might be currently employed the sponsoring company, a person does not have to be a current employee of the company—they must have the intent to be an employee of the company at some time in the future, i.e. once the government approves the Green Card.

Can I Change Jobs or Employers during the Labor Certification or ETA 9089?

A person doesn’t have to be employed with a company for that company to engage in a Labor Certification process. Generally speaking, a person will be currently employed with a company while they engage in the Labor Certification process but that is not a rule or requirement.

If a person is currently employed by a company engaging in the Labor Certification process and chooses to take employment with another company, nothing prevents the original company from continuing the Labor Certification process for that person. Realistically, once a person leaves a company it is unlikely that company will want to continue throughout the lengthy process. However, as long as they are willing, nothing at law prevents the company from pursuing those interests.

Now what happens if a person gets a different job with the same company? The company can still continue the Labor Certification process. Remember, this entire process is about the job they’ll take at some indeterminate time in the future, i.e. once the Green Card is finally approved. A vertical or horizontal change in current duties does not hinder our intent to fill the position conceptualized by the Labor Certification.

Can I Change Jobs or Employers while the I-140 is pending? Can I change jobs or employers after the I-140 is approved?

Preemptively I ask you to forgive my repetition but the same notion typically applies at each stage perhaps with some varying permutations.

Similar to above, if a person is currently employed with a company who has filed the I-140 and chooses to take employment with another company, nothing prevents the original company from continuing the I-140 approval process for that person. Realistically, once a person leaves a company it is unlikely that company will want to continue the I-140 process and might choose to not file or otherwise withdraw a pending petition. However, as long as they are willing and can continue demonstrating an ability to pay the wages of the sponsored non-citizen, nothing at law prevents the company from continuing the process interests.

Now what happens if a person gets a different job with the same company? The company and/or sponsored non-citizen can still maintain compliance with the I-140 process, both while the I-140 is pending as well as after approval. Remember, this entire process is about intended employment at some indeterminate time in the future, i.e. once the Green Card is finally approved. A vertical or horizontal change in current duties does not hinder the approvability of an I-140.

Now what happens if I change employers after the approval of the I-140? Nothing, unless the I-140 company withdraws the petition. An I-140 will remain active and approved until withdraw by the petition company. A company might withdraw an I-140 for a number of reasons. Most principally, they will withdraw the I-140 for an employee who has left the company. They are not required by law to do so, but it is often in the company’s interest to withdraw the I-140 for a person who has long left the company.

One thing worth considering–How long after the I-140 has been approved before it is withdraw has serious consequences for the non-citizen.

Can I change jobs or employers while the I-485 is pending?

If a person is currently employed with a company who has sponsored the I-485 and chooses to take employment with another company, nothing prevents the original company from continuing the sponsorship process for that person. Realistically, once a person leaves a company it is unlikely that company will want to continue the sponsorship process and might withdraw their petition for the Alien Worker. However, as long as they are willing and can continue demonstrating an ability to pay the wages of the sponsored individual, nothing at law prevents the company from continuing the process interests. From the employee’s perspective, it is important to recognize that the government will be interested in the employee’s intent to go work for the sponsoring company once the Green Card is approved. If United States Citizenship and Immigration Services (USCIS) are not satisfied with the employee’s intent to work for the sponsoring company, they will deny the Green Card.

Now what happens if a person gets a different job with the same company? The company and/or sponsored non-citizen can still maintain compliance with the I-485 process, both while the I-485 is pending as well as after approval. Remember, this entire process is about intended employment at some indeterminate time in the future, i.e. once the Green Card is finally approved. A vertical or horizontal change in current duties does not hinder the approvability of an I-485.

What happens if a person leaves a company that sponsored them before the I-485 is approved? What happens if a person leaves a company after the I-485 is approved?

Indentured servitude has no place in the United States. While a person might need sponsorship throughout a process, they are not moored to that company for life. There are mechanisms that protect a company and US workers throughout the process. Similarly, there are mechanisms that protect the non-citizen worker throughout the process as well. For the non-citizen worker, these only appear very late in the process.

Once the I-485 has been pending for at least 180 days, the non-citizen is vested with what might be called I-485 Supplement J rights. They are entitled to “port” the entire sponsorship to a new company offering same or similar employment as the original sponsoring company.

Once a person receives the I-485 approval, they are vested with full and unencumbered economic rights in this country. They are free to take lawful employment with any company, in any role, in any place in this country. They can start their own business. They can be unemployed. They can work 20 hour days if they choose. Once the I-485 is approved, nothing at law requires the company to employ that person or for that person to remain employed with the company.

For more information, or for a detailed conversation the intricacies of a job or employer change before, during, or after your Green Card Process, I invite you to schedule a time to speak here.

By Ryan A. Wilck, Partner and Attorney at Law

Ryan Wilck is a Managing Partner and attorney at Reddy & Neumann, P.C. with over a decade of US immigration law experience, enthusiastic and proactive in his approach assisting clients and their employees through the various phases of the permanent residency a/k/a Green Card process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life’s motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients by utilizing a relentless and detail-oriented approach to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem or interest, he and his team will find a solution, through wisdom and effort. Reddy & Neumann, P.C. has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on employment-based business immigration. We work with employers and their employees, helping navigate the complex immigration process efficiently and cost-effective.

 We are committed to assisting our clients with navigating the complex PERM Labor Certification (ETA 9089 and other challenging immigration matters as an accomplished immigration law firm in Houston, Texas. Our team is here to offer the direction and support you require, whether you’re a company trying to hire top talent or a foreign worker seeking to develop a career in the United States. To find out more about how we can help you with your immigration issues, get in touch with us right away.