One of the more common questions we receive from individuals traversing the employment-based Green Card process is whether an individual can take a promotion or advance their career while the Labor Certification, I-140 and/or I-485 process is underway. Generally speaking, the answer is absolutely! However, it is important than an individual and their sponsoring employer understand the legal intricacies at play so that they can make the best choices for themselves and their families.

The typical employment-based Green Card process involves 1) obtaining a Labor Certification for the sponsored position from the Department of Labor; 2) filing a Form I-140, Immigrant Petition for Alien Worker within 180 days (6 months) of the Department of Labor approving the Labor Certification; and 3) filing a Form I-485, Application to Adjust Status to Lawful Permanent Resident.

Typically, one will obtain the Labor Certification before proceeding with the I-140 and I-485. Depending on a number of factors, some individuals may be able to file the I-140 and I-485 at the same time. We call this a “concurrent” filing. For others, it is simply a legal impossibility to file the I-140 and I-485 at the same time. For those who are “backlogged”, one may be required to wait an indefinite amount of time until their priority date is current under the monthly Visa Bulletin.

As a quick summary, the Labor Certification intends to test the labor market in the locality of the offered position to ensure that no willing, qualified, or able US workers are displaced by hiring an immigrant. The Labor Certification identifies the education and experience required of the sponsored position, identifies the rate of pay for the position, and sets the Alien’s priority date. The Form I-140 demonstrates to the government that the sponsored alien has the education and experience required of the position and that the sponsoring employer has the ability to pay the alien’s wage. Finally, the Form I-485 is the actual Green Card request to the government, proving the person has a valid job offer and is admissible to the United States, i.e. maintained lawful status and/or presence in the United States, isn’t a criminal, drug addict, spousal abuser, or other enumerated bars to Lawful Permanent Resident a/k/a Green Card status.

Whenever I’m faced with the question of “Can I take a promotion during the Green Card process?” the first idea I always try to get across to my client or potential client is the idea of what this sponsored position entails from a legal position. In legal terms, the job offer/position supported by the Labor Certification, I-140 and/or I-485 is a future job opportunity, even if it’s the exact same position the client might be in today. In legal terms, I think of the Green Card job opportunity as a future job to be taken AFTER the Green Card is approved.  When we think of it this way—it solves the problem of the inherent question as well as negates any concerns about working for a different company or in a different position during the different steps in the process.

How we address this question is dictated by where we’re at in the GC process. Are we just working on the Labor Certification? Is the I-140 filed yet or approved? Have we filed the I-485?

For the sake of illustration, let’s assume a Company has three types of positions—entry-level, mid-level, and senior-level. We’re going to further assume the Labor Certification was drafted for a mid-level position.

LABOR CERTIFICATION STAGE

You’re in a mid-level position at the company and now you have the opportunity for an internal promotion. However, the company has already started your Labor Certification process for the “mid-level” position. Will this impact your Labor Certification? Legally speaking—no; business speaking—perhaps.

The Labor Certification is simply about the education and experience required of the position. Moving into a “higher” role does nothing to change that Labor Certification. Therefore, even if you take a promotion, Department of Labor will still process and approve the PERM 9089/Labor Certification.

However, from the business side of things—it might not make “sense” from the company’s perspective. However, from an immigration law side of things—it makes perfect sense to continue the process and I hope to illustrate why hereafter.

Form I-140 Stage

As stated above, the Labor Certification is simply about the education and experience required of the sponsored position. The I-140 is simply about whether the sponsored Alien has the education and experience required as stated in that Labor Certification.

Rhetorically I have to ask—how does taking a promotion change your previous education and experience? Simply put, it doesn’t!

In “theory”, the I-140 serves as a job offer. So let’s say the I-140 is for the “mid-level” position but you’ve been offered a position higher in the chain of command. In the government’s eye, there’s nothing wrong with a company offering you a “lower role” than one you might move into. As long as the company can pay the wage and as long as both parties are willing to enter into this “lower role” upon the approval of the Green Card, all USCIS cares about is whether the filing fee check has cashed. I say that jokingly, but that’s the reality of it.

Green Card Stage

The Labor Certification is long approved; the I-140 is approved. You’ve filed the I-485 and you’re waiting eagerly for that final approval so that you can proudly proclaim you’re a Lawful Permanent Resident of the United States. Throughout this whole process, you remained in the “mid-level” position and now the company wants to offer you a higher role. Or perhaps another company wants to poach your talents for their own.

Can you take a promotion? Can you change employers? As sure as the day is long, the answer is absolutely.

Let’s say the company wants to give you that higher role. USCIS understands career progression and does not require a person to be indentured to a position or employer for more time than is minimally reasonable. Generally speaking, so long as that position is not night-and-day different from the I-140 position, USCIS will not have any issues. So long as you’re not going for an Data Architect to an Accountant, USCIS will likely pay no mind.

Let’s say another company wants to hire you: While your Green Card is pending, you as the Alien have the right to move or “port” the I-140 job offer to a new employer. Typically, if your I-140 is approved and the I-485 has been pending for more than 180 days, any company in the United States can offer the Alien a “same or similar” job opportunity and thereby “port” the Green Card sponsorship from the original employer to this new company without having to go through the lengthy and cumbersome Labor Certification process as well as avoiding the necessity of filing their own Form I-140. Additionally, there is no filing fee cost for an I-485 Supplement J. In this scenario, in the simplest terms the “new employer” submits the I-485 Supplement J requesting job portability and thereby takes over the entirety of the Green Card sponsorship from the original employer/I-140 sponsor.

For more information, or for a detailed conversation regarding your Green card process and how you can make career progression or employer mobility work for you and your family, 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.