My current employer started a PERM-based green card process on my behalf. Now I am thinking of changing employers. What happens to my PERM and I-140?

My current employer started a PERM-based green card process on my behalf.  Now I am thinking of changing employers.  What happens to my PERM and I-140?

An employment-based green card process is employer-specific and job-specific.  In order to be eligible for an approved I-485 Adjustment of Status, you must work for the sponsoring employer for at least 180 days after filing the I-485.  After 180 days, you may port your employment to another employer under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) so long as the qualifying new job offer is in the same or a similar occupational classification as the job offer for which the petition was filed.

What happens if you want to leave your sponsoring employer earlier than this point?  What happens to your green card application?  The answer depends on where you are within the green card process.

To adjust status to a U.S. Legal Permanent Resident, your employer at that time must have a certified PERM and approved I-140 for you, for the job under which you want to adjust status.  If you leave an employer before you file the I-485 Application to Adjust Status, your new employer must start the process for you from the beginning, which means obtaining a prevailing wage for the job they are offering you.  However, you may be able to retain certain benefits depending on when you left your employer.

What if you leave after your PERM is certified but before the I-140 is filed?

What if you leave your employer after your PERM is certified but before the I-140 is filed?  The PERM is job-specific and employer-specific.  You cannot transfer your current PERM to a new employer.  The process must start again at the very beginning.  What happens to your certified PERM with the old employer?  Either your employer will proactively withdraw the PERM, or it dies in 180 days if an I-140 is not filed.  You cannot keep anything from the PERM process for any future filings.

When can you keep your priority date?

What about the priority date?  When can you keep that?  When filing for a green card, the “priority date” is a very important date, as the Visa Bulletin publishes the priority dates, by visa category, which are currently eligible for a green card.  For a PERM-based green card, the priority date is the date that the PERM was filed.  The only way a beneficiary can keep his/her priority date is if the corresponding I-140 is approved. 

What if you leave your employer after the I-140 is filed but before it is approved?  If the I-140 was filed but not approved and the employer withdraws the I-140 petition, again, you are unable to keep anything from the previous green card process.  This means you still lose your priority date.

What if you leave your employer after your I-140 is approved but before 180 days have passed since approval?  At this point, you get to keep your priority date.  For foreign nationals from countries that have a visa backlog, such as India and China, retaining the priority date is a huge benefit.  If the foreign national changes employers and needs to restart the green card process from the beginning, the process can easily take two years or more before the I-140 can be filed and approved.  However, the employee can file the I-485 Application to Adjust Status based upon their earlier priority date, therefore saving a few years of waiting for a green card.  However, the priority date is all the employee can retain in this situation.

When can you keep your approved I-140 in order to exceed 6 years in H-1B status?

What if you leave your employer after your I-140 is approved and after 180 days have passed since approval?  At this point, your I-140 remains valid, even if your employer withdraws it.  You can keep the priority date and you can keep the I-140.  You cannot adjust status under this I-140, as it is only valid for your original employer and the job they offered you, but you can use this approved I-140 to remain in H-1B nonimmigrant status for more than 6 years.  Again, this is beneficial to foreign nationals from countries such as India and China.

Conclusion

This article is does constitute legal advice.  These guidelines describe the green card process in general.  However, each situation and set of facts are different.  Before making any immigration-related decisions, it is always advisable to contact an attorney familiar with U.S. immigration laws.  To discuss your specific case with our firm, please schedule a consultation.