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Green Card

Hiring a Foreign National with a Pending I-485

When an employer hires a foreign national with a pending I-485 the assumption is that the new employer shall assist the employee in their attempt to obtain a green card.  However, what the employer can do depends entirely on when the employee has decided to join the new company. Typically, if an employee joins a new company the new employer, or Petitioner, will have to start the entire process over by filing a new labor certification and I-140. The only benefit the employee will retain in this circumstance is the ability to use their old priority date once the new I-140 is certified. Luckily, there is also a second more advantageous option for those employees in certain circumstances.

Under AC21 an individual may port to a new employer if their I-485 application has been pending for at least 180 days, the new position is the same or similar to the one originally filed for, the I-140 is approved or filed concurrently, and the filing category is EB-1, EB-2, or EB-3. Pending for 180 days would mean the case has been receipted with USCIS for the desired timeframe. Additionally, there are several factors to consider when determining whether a position is similar or not. These include the SOC code (occupational code), job duties, education and training requirements, license requirements, and salary of the position.

If it is determined that the employee does in fact qualify for AC21 portability there are several ways to inform USCIS of the job change. A new I-485 supplement J can be sent to USCIS regarding the new job and employer either once the job change occurs, when responding to an RFE (request for evidence) or NOID (notice of intent to deny) or when appearing for an interview to review the adjustment application. The new I-485 supplement J should be submitted to the same address as the previously submitted I-485 application and does not require an additional fee.

In addition to determining how to proceed with the green card process for the new employee the Petitioner should also ensure the Beneficiary continues to maintain valid work authorization through either their underlying nonimmigrant status, such as H-1B or L-1, or by utilizing their EAD filed with the I-485 application. Since each immigration case is unique it is strongly recommended that you and your potential employee speak with an immigration attorney prior to making a decision on how to proceed.

By: Staff Attorney