One of the most persistent misunderstandings in employment-based immigration practice concerns the relationship between a beneficiary’s present employment and the employer that sponsored the approved Form I-140. Foreign nationals and human resources professionals alike frequently assume that a green card sponsorship dies the moment the beneficiary changes jobs, and that an I-140 approved by a prior employer becomes a piece of historical paper useful only for its priority date. That assumption is incorrect, and the confusion it generates causes qualified applicants to delay filings they are entitled to make and causes employers to decline signatures they are entitled to provide.

The correct framework begins with a single observation: the Immigrant Petition for Alien Worker is not a statement about where the beneficiary works today. It is a statement about where the beneficiary intends to work after lawful permanent residence is granted. Once that prospective orientation is understood, the apparent anomaly of a former employer signing a Supplement J for a departed worker resolves itself entirely.

The Three-Step Architecture

The standard employment-based immigrant process proceeds in three stages. The employer first obtains a permanent labor certification from the Department of Labor, establishing that no qualified United States worker is available for the offered position and that the offered wage meets or exceeds the prevailing wage. The employer then files Form I-140 with U.S. Citizenship and Immigration Services, establishing the beneficiary’s qualifications for the classification sought and the employer’s continuing ability to pay the proffered wage under 8 C.F.R. § 204.5(g)(2). Finally, once an immigrant visa number is available under the applicable priority date, the beneficiary files Form I-485 to adjust status.

Where the beneficiary is chargeable to a country without significant backlog and the priority date is current when the petition is filed, the second and third steps may be filed concurrently. For beneficiaries chargeable to heavily oversubscribed countries, the more common sequence is that steps one and two conclude years before a visa number becomes available. During that interval the beneficiary typically remains in a nonimmigrant classification, most often H-1B, and during that interval the beneficiary’s career does not stand still.

The Prospective Nature of the Job Offer

When the priority date finally becomes current and the beneficiary is prepared to file Form I-485, the applicant must ordinarily submit Form I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j). The requirement is codified at 8 C.F.R. § 245.25(a), promulgated as part of the retention rule published at 81 Fed. Reg. 82398 (Nov. 18, 2016) and effective January 17, 2017. The supplement is not required where the adjustment application is filed concurrently with the underlying petition, nor where the classification is a self-petitioning one such as the national interest waiver or the extraordinary ability category, because in those cases no separate confirmation of an employer’s offer is necessary.

Consider the ordinary case. Ashok is employed by Company A in H-1B status. Company A obtains labor certification and an approved I-140 on his behalf. His priority date becomes current, and he files Form I-485 supported by a Supplement J executed by Company A. Nothing about that sequence is remarkable.

Now consider the case that generates the questions. Senthil is likewise employed by Company A, which likewise obtains labor certification and an approved I-140. Before his priority date becomes current, Senthil accepts a position with Company B and transfers his H-1B. Company B has no intention of pursuing permanent residence for him, or has not yet begun to do so. Senthil’s priority date then becomes current. Can he file for adjustment of status without an I-140 from his current employer?

He can. Senthil contacts to Company A and requests that it execute an I-485 Supplement J, confirming that the position described in the I-140 petition remains available and that the company intends to employ him in that role upon approval of his permanent residence. Company A’s signature is not a representation that Senthil works there now. It is a representation that the job offer described in the petition remains genuine and open. Current employment is simply not the operative fact; prospective employment is. The regulation asks whether a bona fide job offer exists, and a job offer can be entirely bona fide with respect to a person not presently on the payroll.

This point deserves emphasis for the employer audience. A company executing Supplement J for a former employee assumes no obligation to hire that individual immediately, to hold a seat open in the interim, or to alter its present staffing. It attests that the offered position remains available and that it intends to employ the beneficiary in it if and when permanent residence is granted. The attestation must be truthful, and counsel should confirm that the offer is in fact genuine before the signature is provided, but a truthful attestation carries no hidden operational burden.

The Second Function: Portability Under INA § 204(j)

Supplement J serves a second and distinct function. Section 106(c) of the American Competitiveness in the Twenty-First Century Act added INA § 204(j), which provides that an approved petition remains valid with respect to a new offer of employment where the adjustment application has been filed and has remained unadjudicated for at least 180 days, provided the new position falls within the same or a similar occupational classification. The implementing regulation appears at 8 C.F.R. § 245.25(a)(2)(ii)(A) and (b).

The 180-day clock runs from the date the adjustment application is properly filed and received, not from any later event. The underlying petition must have been approved; a petition that remains pending cannot support a portability request, though a petition pending at the time of the request may support portability once approved if it was approvable when filed. 

Once the threshold is met, the beneficiary may submit a Supplement J executed by any qualifying employer requesting that the sponsorship be ported. Where the new position is in the same or a similar occupational classification, USCIS will adjudicate the adjustment application against the new offer and approve permanent residence on the basis of employment with the porting employer rather than the original petitioner. USCIS applies the Standard Occupational Classification system as the primary analytical tool in assessing similarity, together with job duties, skill requirements, and wage comparisons.

The Complete Sequence in Practice

The pattern that emerges is now familiar in our practice. Company A obtains the labor certification and the approved petition. The beneficiary moves to Company B in H-1B status, frequently relying on Company A’s approved petition to support three-year H-1B extensions beyond the sixth year under section 104(c) of AC21 and 8 C.F.R. § 214.2(h)(13)(iii)(E). The priority date becomes current. Company A executes Supplement J, which permits the beneficiary to file the adjustment package. The application pends. After 180 days, the beneficiary submits a second Supplement J porting the sponsorship to Company B, or to any other employer offering a same or similar role. Permanent residence is ultimately approved on the basis of employment with the employer the beneficiary actually intends to join.

Counsel to Employers and Individuals

For individuals, the operative advice is to preserve the relationship with the sponsoring employer and to understand that a job change does not extinguish the sponsorship. Departure on good terms materially increases the likelihood that a Supplement J will be signed years later, and the intent to accept the offered position upon approval must be genuine at the time of filing.

For employers, the request from a former employee should not be reflexively refused. Signing imposes no immediate hiring obligation and no continuing wage exposure. Employers should, however, confirm internally that the position described in the petition remains a position the company would in fact fill, and should route the request through counsel rather than treating it as a routine human resources signature.

For more information, or for a detailed conversation about your green card journey, please 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 or avoiding 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.