Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

11 Broadway, Suite 615
New York, NY 10004

(212) 430-6582 phone
(212) 430-6583 facsimile

Job Changes During the Permanent Residence Process

Q: May I change jobs during the permanent residence process?

A: It depends on the stage of the permanent residence process the case has reached when the job change is contemplated, and the type of employment-based permanent residence process the foreign national is pursuing.

If the change will occur more than 180 days from the filing of the I-485 Application to Adjust Status to Permanent Residence, and the Immigrant Visa Petition has been approved, it is normally possible to change jobs providing certain conditions are met (that the new position is in the same basic field as the one petitioned for). If the case is not yet at this stage (and the benefit of this rule comes so late in the process that few can truly benefit), the answer will be different depending on the type of case.

Q: What if I am pursuing Permanent Residence through the labor certification process?

A: The labor certification process is intended to check for the availability of US workers for a specific job in a specific geographic location for a specific employer. If the case is not yet at the Immigrant Visa Petition approved/I-485 pending 180 days stage and any of these three things change (with certain very specific exceptions for each), an existing case will normally become invalid and will need to be restarted.

However, once again there are a few exceptions.

With regard to the job description, a very insubstantial change to the job duties, such as a simple promotion adding only one or two supervisory duties to the same original duties, will not cause invalidation of the case.

With regard to a change in geographic location, a move of the work site within the same labor market as the original location - as a rule of thumb, a move within commuting distance - a 30- to 45-minute drive - will not cause invalidation of the original case.

With regard to a change in employer, this will usually only be allowable if the new employer is a "successor in interest" to the original employer - meaning that the new employer has acquired the original sponsoring company or a significant portion of it above and beyond the sponsored position.

Normal salary increases usually do not affect the application. A change in the company official or manager the employee reports to (or the one signing the paperwork), without any other change in job duties or work location, will not affect the process.

However, even if no exception applies and the case must be restarted, there is still one last rule which may prove helpful. if the prior case had been approved both at the PERM and I-140 Immigrant Visa Petition stages and was simply awaiting a point at which the priority date would become current, that priority date can be retained with a new, later-filed petition (so, place on line for an immigrant visa isn't lost)

If any job change is contemplated, it is important that you and/or your employer contact our firm to discuss the details.

Q: What if, instead of labor certification, my case is going through a first-preference process such as Extraordinary Ability, Outstanding Researcher, or Multinational Executive or Manager or a second-preference National Interest Waiver process?

A: Extraordinary Ability cases, unlike any other employment-based cases except for Exceptional Ability cases, may be done as "self-petitions" - where the foreign national signs his own paperwork and isn't sponsored by an employer. In such a case, the foreign national may change jobs - even before the 180-day mark from I-485 filing has been reached - as long as the new job continues in the field for which the I-140 asserts extraordinary ability on the part of that person. If the petition was employer-sponsored, the answer is the same as for any other employment petition: the possibility for a job change would be follow the Immigrant Visa Petition approved/I-485 pending 180 days rule.

For an Outstanding Researcher case, the foreign national may change jobs upon approval of the Immigrant Visa Petition and the advancement of the case to a point 180 days past the filing of the I-485 Application to Adjust Status to Permanent Residence. There is no way to change jobs and maintain the permanent residence case prior to this point in the case, and as above the new position must be in the same basic field as the position described in the I-40 Immigrant Visa Petition.

A Multinational Executive or Manager case operates under the same constraints as an Outstanding Researcher - in order to maintain an existing permanent residence case, there can be no change in job until an Immigrant Visa Petition is approved and the I-485 Application to Adjust Status to Permanent Residence case has been pending for 180 days. Once again, the new job must be in the same field.

For a second-preference National Interest Waiver case, the same applies: once the Immigrant Visa Petition is approved 180 days have passed since the filing of the I-485 Application to Adjust Status, the foreign national may change jobs as long as the new job meets the required conditions. The exception is for the rare self-petition, where the foreign national has signed their own paperwork and will continue to work in the same field of endeavor (and national interest).



Contact us here to arrange a consultation, to inquire about retaining us to handle your immigration matter, or simply to suggest topics you would like to see covered on our site.

The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.