When can a person change employers without having to start over?

Q: Many people have been sponsored for green cards by employers through a process called Labor Certification. Their cases may have been filed years ago, and during the time they were being processed, the aliens may have changed jobs or the employers may have gone out of business. Does a person have to start over again from the beginning, or can a new employer take over the first employer’s existing labor certification case?

A: In October 2000, former President Clinton signed into law the American Competitiveness in the 21st Century Act (AC-21), which allowed, among other things, the alien to change employers if the alien’s adjustment of status application (Form I-485) had been filed and remain pending for 180 days (six months) or more, so long as the new job, "is in the same or a similar occupational classification as the job for which the petition was filed."

This "portability" provision means that a person would be able to change employers without starting over as long as the Department of Labor had already "certified" the job (approved the labor certification application), the employer’s petition (Form I-140) and the adjustment of status application (Form I-485) had already been filed, and the I-485 remained pending for more than 180 days.

Recently, the USCIS clarified the circumstances under which an alien is able to change employers under AC-21 without having to start all over again. In order to be able to change employers (or have a new employer "take over" the existing case), not only must the adjustment of status application be pending for 180 days or more, but the original employer’s I-140 petition must have previously been approved. An alien would not be able to avail of the portability provisions of AC-21, and would not be able to change employers (or have the new employer "take over" the case) if:

1. The original employer’s labor certification is pending with DOL;

2. The original employer’s petition was never filed or is still pending with USCIS; or

3. The original employer’s petition was denied or revoked.

Instead, the new employer would have to file a new case (now under PERM), and the alien would get a new priority date based on the filing date of the new employer’s case.

This policy clarification from the USCIS is based on a case from the Administrative Appeals Office (AAO), which denied an alien’s request to change employers under AC-21 because the original employer’s petition was denied.

In that case, the alien had argued that all that was required under AC-21 was that the adjustment of status application (I-485) remain unadjudicated (or pending) for more than 180 days. There was no requirement that the petition be "approved." The AAO disagreed, ruling that in order for the alien to be able to change employers after 180 days, the original employer’s underlying Form I-140 petition must have been approved. The AAO was concerned that aliens would file bogus petitions for fake or fictitious employers or jobs, thinking that once the case was pending for 180 days, the situation could be rectified or corrected through a convenient switch of employers later on.

I know how frustrating it can be for people seeking to obtain a green card and achieve their American Dream. If you think you may be eligible to change employers under AC-21, I would recommend that you seek the advice of a reputable attorney, who can evaluate your case to see if a new employer will be able to take over the existing case or whether you will need to start over. But it is important that you know your rights and what is right, which is why I recommend that people retain a reputable attorney rather than trying to do it on their own.

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