from immigration-law.com
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Updated 05/29/00: EB-485 Approval and Obligation for Post-GC Employment
* As increased number of people get EB-485 approvals, people wonder the consequences of departing from the employment that provided basis for EB-485. This issue was quite extensively discussed on this web site sometime back and people may visit our Breaking News Archive.
* This issue is likely to arise typically in two circumstances: First, angry employer can contact with the INS charging that the alien committed a fraud and used the employer. Second, most people will apply for naturalization after five years or file immigrant petition for family members and the INS may have a chance to review the immigration history of the alien. Let's review some of the legal points here.
* People become a permanent resident not at the time of stamping in the passport but at the time of the INS approval and receipt of notice. (However, for the purpose of overseas trip, he/she must have the stamp in the passport.) At this point, the alien should have an intention to work for the petitioning employer. How do you prove "intention" or "state of mind" of the alien? The INS would try to prove it by circumstantial evidence. One of the best circumstantial evidence for the INS would be probably the alien's application for employment with another employer before 485 was approved. Acceptance of offer of employment prior to approval of 485 will constitute a more damaging evidence. Another circumstances would be immediate departure from the employment upon approval of 485. Taking a new employment within a short period of time could be construed as the presumptive evidence that the alien did not have any intention to keep the employment at the time the INS approved 485. The presumption will gradually disappear as time passes. In the change of nonimmigrant status context, the INS usually adopts so-called 60-day presumption of misrepresentation rule. Once it reaches 90 days, the INS assumes that the burden of proof shifts to the INS. For the act within 60 days, the INS assumes that they enjoy a rule of presumption of misrepresentation and the alien would have a burden of proof that no such misrepresentation existed. Common sense dictates that one takes time to get an employment offer from another employer and it would not happen overnight.
* Considering the fact that there is no hard-and-fast rule on this issue, people should not act too smart too fast. Morally, it would also be wrong!
* Termination of employment by the employer or by certain circumstances which were beyond the control of the alien such as bankruptcy of the company will not affect the people's GC status. Back to Top
