Friday, January 14, 2011

Can one leave sponsoring employer soon after getting Green Card?

Friday, January 14, 2011 | , ,

A green card job offer is legally considered a future full-time and permanent job offer. Therefore, the employee must have a good-faith intention to work for the employer after the green card is approved, and the employer must have a good-faith intention to employ the employee after the green card is approved. Even if one worked for the sponsoring employer for several years while pursuing the green card process, that would not count as future intent. Generally, 6 months to 1 year after obtaining the green card is a safe time period to change employment. Failure to stay at the sponsoring employer may result in problems at the naturalization stage.

The official rule is that you must not have any preconceived intention to leave the job when you get your Green Card. In general, working for the company for one year after getting the GC is normally considered sufficient. If individual want to leave job after filing I-485, he/she should work for sponsoring employee for at least 180 days before they can file for AC21 portability.

To be on safer side, I would not change jobs before a year. It is just matter of time when your miscalculated decision can come back and bite you. As they say "Fools Rush In".

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Pkouzm said...

Logically incorrect. According AC21 you can legally leave BEFORE getting GC. Why then you can't leave after? It is ridiculous.

Pkouzm said...

 Simple example to explain my point, let say:

On 01/01/2010 he/she filed I-485 and on 01/01/2011 she/he  got GC. After 180 days from filing he/she can legally and safe leave the sponsor according AC21. So, let say she\he can safely leave on 12/31/2010 (>180 days passed after filing). BUT! According to you, on the next day 01/01/2011 he/she can't leave, just because she gets GC, and has to work one more year.

According to you GC "cancels" possibility to leave provided by AC21. Can you provide any document or case proving that  you are correct?

Based on you incorrect logic a person can leave after 180 days but this period finishes when she gets GC, that you opinion?   this is totally wrong. 

CM_USNonImmigrants said...

AC21 180 days clause was putforth to alleviate pain for those who were stuck in backlog due to retrogression. There was no intention to support a case for an employee to work for 6 months (as if a contract position) for so called "permanent position" for which there is no American professional available. Ac21 allows you to change job after 180 days in similar field with 50% or more job duties with certain constraints in salary. Idea is to say if an EAD holder was hired for that job it means need for such professional is still there and qualified American professional is still not eligible to hire. This is why EVL is asked again before GC approval. This means individual should have intention to work for new employer with intention to stick to the qualified field.

Well intent can change with time and there is not time bound constraint from USCIS on that. For non-immigrant purpose it is 90 days for F1B student to change to H1B. Can similar reference be taken for GC holder? Yeah may be. Veteran IOs still think it is 6 months. So changing jobs after GC is at your discretion as long you can prove you had intention to work for the employer on receiving GC. How your intention changed and how you can prove it, onus is on you when it comes to USCIS during any interview.

Here is an excerpt for SOP from field manual from USCIS IO for citizenship interview. If you think you will have enough reasons to convince IO that no fraud or misrepresentation of intent was present on gc approval, you can change job whenevr you want. See excerpt below.

"The type of questions you ask the applicant to determine whether the applicant acquired LPR status lawfully, depends on how the applicant obtained LPR status. The following are typical examples of how an applicant may have obtained LPR status.

• Through An Employment Based Petition – An applicant obtained permanent residence through employment with a U. S. company. You should review the employment history section of the N-400 application to ensure that the I-140 petitioning employer is listed. If the petitioning employer is not listed, you should prepare questions to address this issue. Such questions might include:

– Did you ever work for the petitioner?

– How long did you work for the petitioner?

– In what capacity did you work for the petitioner?

– Why did you leave the position?

– What were you paid?

– Where did you work for the petitioner (location)?

– Where did you go or work after you left your job with the petitioner or instead of working for the petitioner?

– When did you first learn that there would not be a long-term position for you?

You should also determine whether the applicant met all of the eligibility requirements of the employment classification under which he/she was granted status. For example, did the applicant have the necessary training or experience that the labor certification required for that classification? The labor certification, which seeks to classify the applicant’s occupation as a shortage occupation, must be filed with the U. S. Department of Labor for most employment-based immigrant petitions. [See 8 CFR 204.5 . and Chapter 22 of this manual.] "

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