Job Changes During the Immigration Process

It is important to understand that job changes, including title, description, and geographic location changes, may have a significant impact on a foreign national’s immigration status.

When contemplating a change to a new employer, the American Competitiveness in the Twenty First Century Act of 2000 (AC-21) provides job flexibility to employers and employees, but can also pose logistical challenges and risks.

Whether changing jobs within the same company, or transitioning to a new employer, both employers and employees should understand the immigration impact, process, and related cost - BEFORE THE CHANGE IS MADE.

At Ryvin Wallace Group, our lead attorneys have been providing strategic guidance to employers and employees in connection with job changes for more than 25 years, and are ready to answer your questions. Below please find a few examples for some of the most common situations.

Nonimmigrant Processing
H-1B Petition
USCIS grants H-1B status to foreign national employees to work for a specific employer, in a specific position, and in a designated geographic location. In the event of a job change with the same employer - it is important to review the new position against the original H-1B. An amended H-1B petition or a new LCA (Labor Certification Application) may be required to remain in compliance with applicable immigration law.

In the event of a job change with a new employer (H-1B Portability) - A foreign national who holds or has previously held H-1B status may be eligible to accept new employment with a new employer, upon the filing of a new H-1B petition by the prospective employer, if: (1) the foreign national was lawfully admitted to the United States; (2) the new H-1B petition filed by the prospective employer is non-frivolous; (3) the new petition is filed before the date of expiration of the period of stay authorized by the AG (see I-94); and (4) subsequent to such lawful admission the H-1B beneficiary has not been employed without authorization before the filing of such petition.

L-1 and TN Petition
Both L-1 and TN status provide some flexibility for changes in position and geographic location. Individuals in L-1 and TN status may change geographic locations without filing amended petitions with USCIS. Changes in position, however, may require the filing of an amended petition. The new position should be assessed PRIOR to the change, to determine any action that may be required.

Permanent Residency Processing
Permanent Employment Certification Application
The US Department of Labor (DOL) approves Permanent Employment Certification Applications (PERMs or Labor Certifications) for specific positions in designated "areas of intended employment". If a job change is contemplated, it is very important to notify assess the change PRIOR to accepting the new position to ensure that the underlying PERM filed on your behalf will remain valid.

In the event the job change is material, ie, significant changes in position or geographic location, a new PERM should be filed. This could greatly impact the timing of a foreign national’s green card processing due to the issuance of a new filing or "priority date." It could also eliminate the ability of an H-1B status holder to extend his/her stay beyond the 6 year limit, if the new PERM is filed less than 365 days prior to the 6 year expiration.

Outstanding Researcher and Multinational Manager/Executive 1-140 Petition
Generally, changes in position for Outstanding Researchers and Multinational Managers will not require the filing of a new I-140 petition provided the new position is similar to the position noted in the original I-140. However, an amended nonimmigrant petition may be required. Notably, EB-1A (Extraordinary Ability Aliens) are not included under AC-21 Section 106(c), most likely because Congress assumed such petitions were already portable.

Adjustment of Status
I-140 portability provisions of AC-21 provide job flexibility to long-delayed adjustment of status applications, by enabling the beneficiary to accept employment that is different from the position described in the I-140 petition, and leave the employment of the I-140 petitioner.

AC-21 Section 106(c) allows an approved or pending I-140 immigrant petition filed on behalf of a foreign national in the first three employment based preference categories (with the exception of EB-1A extraordinary ability aliens) to remain “valid” if, (1) the foreign national’s adjustment of status application has been filed and remained un-adjudicated for 180 days or more; and (2) the foreign national changes jobs or employers and the new job is in the same or similar occupational classification.