Job Change

J

jollyfella

Registered Users (C)
Hi here's my newbie question!

I'm working with an attorney, hired by my employer to file under OR category. I'm going for concurrent filing, and my question is whether I could leave my current employer once I-140 is approved. Or do I have to wait until I-485 approval?

JollyFella
 
jollyfella said:
Hi here's my newbie question!

I'm working with an attorney, hired by my employer to file under OR category. I'm going for concurrent filing, and my question is whether I could leave my current employer once I-140 is approved. Or do I have to wait until I-485 approval?

JollyFella
Click to expand...

You have to wait until the I-485 is approved...probably even 6 months after.

Brian
 
leroythelion said:
You have to wait until the I-485 is approved...probably even 6 months after.

Brian
Click to expand...
Brian!!!
Are you sure!
If this guy gets I-140 approved and spends six months with current boss.
Can't he/she leave this job and take similar job?!!!!!
If one has to wait for I-485 to approve then its trouble especially for those from retrogressed country!!!
opinions needed!!!
 
Job Portability

I believe Brian is actually wrong...

As far as I know, six months after you FILE your I-485, you can change your job to another similar job. Now, for those who file I-140 and I-485 concurrently, there are two conflicting opinions and apparantly it is still not fully clarified by the USCIS.

Some attorneys believe you can change jobs six months after I-485 provided that your I-140 is already approved. In other words, the six months counter still starts from the day you concurrently file your I-485 and I-140 but your I-140 should already be approved for you to be able to change your job.

The second opinion is that the six months counter actually starts AFTER your I-140 approval, i.e., you can change jobs only if you have filed I-485 and you have waited at least six months after your I-140 is approved.
 
greenc_seeker said:
I believe Brian is actually wrong...

As far as I know, six months after you FILE your I-485, you can change your job to another similar job. Now, for those who file I-140 and I-485 concurrently, there are two conflicting opinions and apparantly it is still not fully clarified by the USCIS.

Some attorneys believe you can change jobs six months after I-485 provided that your I-140 is already approved. In other words, the six months counter still starts from the day you concurrently file your I-485 and I-140 but your I-140 should already be approved for you to be able to change your job.

The second opinion is that the six months counter actually starts AFTER your I-140 approval, i.e., you can change jobs only if you have filed I-485 and you have waited at least six months after your I-140 is approved.
Click to expand...

You are right, I stand corrected. You can change your job 6 months after the I-485 is submitted, i.e. once your PD is current. The fact that USCIS has not yet issued any type of guidance on a law passed while Clinton was President is abhorant. The legacy INS never wanted this but the law was passed because the INS had no accountability and AOS routinely took 3-4 years, clearly unacceptable. They fought back by not acknowledging the law existed yet still had to follow it.

Brian
 
Hi everyone......
I have been working for a company since 2000. I got my labor certificate and I-140 approved. The issue is with my I-485....... My Lawyer advised me that I have to wait for the priority date to become current until she can file my I-485. As it stands today, April 2001 is the current date where my PD is Oct.2002.
With the progress we have been seeing the past few years, I anticipate another year or two before my set PD becomes current.
I am not sure who is experiencing similar sintuation......
To make a long story short, I was wondering if any of you knows whether
1) We can file the I-485 eventhough the PD is not current
2) If I change jobs prior to filing I-485, will that reset the clock and have to go through the same experience with the Labor certification, 140....
I do appreciate your comments in regards to the above questions.........
Thanks
 
leroythelion said:
You are right, I stand corrected. You can change your job 6 months after the I-485 is submitted, i.e. once your PD is current. The fact that USCIS has not yet issued any type of guidance on a law passed while Clinton was President is abhorant. The legacy INS never wanted this but the law was passed because the INS had no accountability and AOS routinely took 3-4 years, clearly unacceptable. They fought back by not acknowledging the law existed yet still had to follow it.

Brian
Click to expand...

I may be not smart enough to understand this.
Brain could you please correct me if i am wrong.
One can change job after 6 months (of I-140 approval) and pending I-485 only if the VISA numbers were current!! is that right!!!!!

Or ..............
 
Thanks guys for your input!

Let me see if I understand right...

Assuming the equal footing for the dubious interpretations on the "6 months after..." clause, I have to wait for 6 months after EITHER I-140 approval (which translates into approx 12 month after concurrent filing at VSC) OR I-485 filing (which is likely about 6 months after concurrent filing at VSC). So would I be looking at 6-12 month time frame for job change?

A related question to this is, if I file another I-140 for NIW in addition to OR, how short would this waiting period become? Would I have any tangible benefits by doing so?

Not that I'm looking but the sense of freedom that I can quit any time I want would be immensely gratifying :D

JollyFella
 
Last edited by a moderator:
A related question to this is, if I file another I-140 for NIW in addition to OR, how short would this waiting period become? Would I have any tangible benefits by doing so?

ANS: NIW basically don't have any job requirement..................that is the advantage of NIW over EB1-OR..After filling............ You are free to work in similar kind of National interest work after 6 months of I-140 approval!!!!
 
nsceb1 said:
I may be not smart enough to understand this.
Brain could you please correct me if i am wrong.
One can change job after 6 months (of I-140 approval) and pending I-485 only if the VISA numbers were current!! is that right!!!!!

Or ..............
Click to expand...

No... as far as I know, job portability has nothing to do with visa number availability. As long as you can file I-485 and it is pending for six months, you can change jobs subject to either of the interpretations in my earlier post.

So if you are already subject to retrogression and cannot file I-485, then obviosuly you have to wait until visa number is available.
 
jollyfella, you understood correctly. Google "AC21" on this issue.
I could be wrong but I heard USCIS went even more lenient on job change
recently although there is always risk.

EB-1 NIW is not employment based as I recall. Therefore it is
not related to job change or employment status.

Good luck,
fdfd


jollyfella said:
Thanks guys for your input!

Let me see if I understand right...

Assuming the equal footing for the dubious interpretations on the "6 months after..." clause, I have to wait for 6 months after EITHER I-140 approval (which translates into approx 12 month after concurrent filing at VSC) OR I-485 filing (which is likely about 6 months after concurrent filing at VSC). So would I be looking at 6-12 month time frame for job change?

A related question to this is, if I file another I-140 for NIW in addition to OR, how short would this waiting period become? Would I have any tangible benefits by doing so?

Not that I'm looking but the sense of freedom that I can quit any time I want would be immensely gratifying :D

JollyFella
Click to expand...
 
eb1doc said:
ANS: NIW basically don't have any job requirement..................that is the advantage of NIW over EB1-OR..After filling............ You are free to work in similar kind of National interest work after 6 months of I-140 approval!!!!
Click to expand...

Thx for your comment! If I need to wait for 6 mo after NIW approval (i-140), that doesn't sounds like there's any additional benefit, over OR, for me.

I'm mostly concerned with timeline here. So, if NIW+i485 takes NIW approval plus 6 months (which would be 6+6=12 months for VSC for now), and OR+i485 takes 6 or 12 months, then the latter option seems actually better for me.

Job requirement is of a less concern for me since I already have a job (permanent). Also, having worked in the same field through all my career for the last 16 years, most likely I'll be doing what I'm doing for the rest of my career, not necessarily for the same employer though. Hence, my worries ;)

JollyFella
 
Thanks for your suggestion, fdfd!

I did that and found, from an attorney's newletter (murthy.com), this:

...to be safe, eligibility for portability benefits should not be presumed until the I-485 has been pending for 180 days or more AND the I-140 is approved. The 180 days would still be counted from the date of filing but the eligibility would not arise until both elements are met. Following are examples of the scenarios that may arise.

Scenario 1
The I-140/I-485 are filed concurrently. After 180 days, the I-140 has been neither approved nor denied. The foreign national changes jobs. The employer is displeased and withdraws the I-140 or fails to answer a Request for Evidence. There is no I-140 approval. Rather, there is a withdrawal or denial. In this case, it does not appear that the individual would be eligible for AC21 portability. There is no underlying, valid I-140 to "remain valid" so as to allow for the I-485 approval. Put another way, I-140 approval is needed for I-485 approval, even with AC21.

It should be noted that, in this scenario, withdrawing the I-140 prior to approval is different from revoking it after approval. I-140s can be withdrawn at any time prior to approval. After approval, if the employer no longer wishes to support the I-140, the employer can request that the INS revoke the approval. According to the INS, I-140 revocation after the I-485 has been pending for 180 days should not prevent I-485 approval.

Scenario 2
The I-140 and I-485 are filed concurrently. After 180 days, the I-140 has been neither approved nor denied. The individual stays in his job and, on the 200th day, the I-140 is approved. At this point it would appear that this person becomes eligible for AC21 portability, provided s/he had a job offer with a new employer in the same or a similar position.
Click to expand...

The scenario #2 answers my question:)

JollyFella
 
jollyfella: look also here

http://www.immigration-law.com/Visa Retrogression Q&A.html

questions 26 and 45


AND

http://www.immigration-law.com/Advanced Q&A.html

questions 24 and 35

From quoting of Yates memorandum in Q45, it looks to me that even in case when I-140 is not approved yet and I-485 is pending for 180 days, USCIS will ignore I-140 withdrawal request by employer and will still approve I-140 if it was "approvable" by the time it was filled.

This would mean that it is possible to port after I-485 is pending for 180 days even if I-140 is still pending. Such porting will certainly be more of a hassle than porting with approved I-140 though.

IANAL and all that. Read the above-mentioned Q&A yourself carefully. My understanding and/or interpretation could be wrong (or those Q&A could also be wrong).

/dzxing
 
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