VISA CONSULTING JJP GLOBAL

Changing Employers After Receiving Employment-Based Green Card

 

In most situations, to obtain U.S. lawful permanent resident status (i.e., a “green card”) through an employment-based (EB) category, one must be sponsored by a U.S. employer for a position that is full time and permanent. The foreign national must intend to work in that position for an indefinite period upon approval of the green card. While there is no minimum duration that the individual must remain in that position, moving to a different employer shortly after the green card issuance could lead to future immigration problems related to the individual’s intent.

 

EB Case Based on Offer of a Future, Permanent Position

 

For most EB green card categories, the filing is based on an offer of employment for a future, permanent position. The employer attests that the position will be available for the foreign national once the green card is issued, and the sponsored worker promises to work on a full-time and permanent basis in that position upon approval of the green card.

 

Although the regulations require the position to be permanent, this does not mean the foreign national must remain in the position forever. Rather, it indicates that employer is offering a position of an indefinite duration, as opposed to one that is temporary, and that the foreign national agrees to accept the job offer in good faith.

 

Thus, once the green card is approved, the beneficiary is expected to work in the sponsored position for a reasonable period of time. This applies regardless of whether, or for how long, the individual worked in the sponsored position prior to receiving the green card.

 

Changing Employers Shortly After Green Card Issuance May Show Bad Faith

 

The law does not set a specific amount of time that an individual must remain with a sponsoring employer after the green card is issued. However, if the individual moves to a new job shortly after receipt of an EB green card, this could be viewed by the U.S. Citizenship and Immigration Services (USCIS) as evidence that the green card holder never intended to remain in the position. The USCIS could use this as a basis to call into question the validity of the green card.

 

If the USCIS believes that the beneficiary did not intend to remain in the sponsored position, the USCIS could try to rescind (i.e., revoke) the green card altogether. However, the USCIS typically can rescind a green card only within five years of its issuance. In many cases, the USCIS does not learn that a foreign national quickly moved to a new employer until the individual files an application for naturalization (form N-400), which often does not occur until more than five years have elapsed since the green card was issued. This is one reason that rescission based on a job change is rare.

 

Possible Risk of N-400 Naturalization Denials

 

More commonly, the USCIS raises the issue five or more years later when an application for U.S. citizenship is received. At that time, if the USCIS determines that the green card should not have been approved, the naturalization application may be denied. If that occurs, the applicant typically is left in a sort of legal limbo – ineligible to naturalize, but protected from rescission because five years have elapsed since the green card issuance.

How Long is Long Enough?

With no set timeframe in place, it can be difficult to gauge when a move to a new job may be a cause for concern. Many immigration practitioners tend to suggest that remaining in the sponsored position for six-to-twelve months following the issuance of the green card likely is sufficient to evidence that the sponsored employee / beneficiary acted in good faith.

This is a general guideline, though, not a set rule. The inquiry from the USCIS is case-specific. No doubt, there are situations in which factors may arise after the green card is issued that legitimately may lead an employee to move to a different employer in less than six-months’ time.

 

If a change in circumstance requires an individual to move to a new employer relatively soon after a green card is issued, it would be wise to keep evidence of that compelling reason for the job change. In addition, it is good practice to retain evidence of having worked in the sponsored position after the green card was approved (e.g., W-2s, paystubs), even if it was for a fairly short period of time.

 

Conclusion

 

As with a number of areas within immigration law, the rules regarding a change in employer following the issuance of an EB green card are fairly ambiguous. Anyone considering a job change shortly after approval of a green card may wish to consult first with an experienced immigration attorney.

 

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