Should I stay or Should I Go? – An Immigrant’s Dilemma of Waiting.

By Lisa Yu, Esq.

Happy Chinese New Year!  As we end the tumultuous year of the Tiger and begin the peaceful year of the Rabbit, I wonder if there is some truth to the Chinese astrological calendar.  For the past year I have seen my fair share of layoffs, shutdowns, and employment separations.  The question I have been asked most often by clients who wait for years for a green card via employment sponsorship as immigrant visa numbers are hopelessly encased in amber is, “When is it a good time to leave my employer?”  As an attorney representing the employer and the employee, it is probably the most uncomfortable, in addition to the most frequent, conversation to have.  How to tell an employee that they really shouldn’t leave an unhealthy relationship, or how do you proceed with an Immigrant Visa Petition with an employer, knowing that the employee has no intention of staying?  This is when I put my legal hat on and discuss the law; the client can then make his/her own decision about what to.

For someone in the middle of the labor certification application process, if you leave your employer, you don’t get to retain your priority date.  Basically, you are back to square one.  You need to make sure that you have enough time on your H-1B or L-1 visa status to get through the process again.  Right now, labor certifications can be approved in as little as two weeks, but that might not be the case in the future.  Remember the six-month moratorium at the Department of Labor in 2008?  Make sure you have plenty of time to meet the fifth year deadline.  For someone who has an approved I-140 Immigrant Visa Petition, you have been given a gift.  With that approved I-140, you get to retain your priority date, and if you are stuck in visa retrogression, you can extend your H-1B status beyond your 6th year cap date.  But you still need to start a new labor certification with the new employer.

I have been assisting a client through just such a situation for several years.  He has an I-140 approved with Employer A with the priority date of January 2006, 3rd preference, skilled worker.  He didn’t get a chance to file his Adjustment of Status back in August 2007, because he was no longer working for Employer A.  He did an H-1B change of employer to Employer B, which then filed a new labor certification on his behalf only to then lay him off.  He did a second H-1B change of employer with Employer C.  Employer C filed a labor certification, the I-140 Immigrant Visa Petition was approved in April 2010, and we recaptured the original January 2006 priority date.  Currently, the Department of State’s February 2011 visa bulletin lists 3rd preference all chargeability at April 1, 2005. Therefore, he is still waiting to file his adjustment of status.

My client really didn’t lose any time during this whole process because the first I-140 approval held his place in line.  An even luckier employee is one who has an I-140 approved with Employer A in 3rd preference, professional category and is subsequently offered a new position with Employer B that will fall within the category of EB-2, Advance Degree Professional.  With a new approved labor certification and I-140, you get to retain the 3rd preference priority date, but you can jump to the 2nd preference line.  This jump will allow you to be current if you are not Indian or Chinese, or save you 2 to 4 years of waiting in line for the green card if you are from China or India.

If you filed your adjustment of status back in July or August of 2007 and you have now been backlogged for the past 3 years, what rights do you have?  Under Section 106 (c) of the American Competitiveness in the Twenty-First Century Act (AC21), an applicant can “port” to a new employer if 1) an I-140 petition has been approved, 2) the I-485 adjustment of status application has been pending for over 180 days, and 3) the applicant is porting to the same or similar occupation.  What is “same or similar” is up to the judgment of the immigration adjudicator.  I usually compare the duties for the position, and make sure that they are in the same job classification code.  As I told one client, same and similar is not being a researcher at $35,000 per year, to now being a physician at over $200,000 per year.  In the eyes of the immigration service, your original labor certification did not test the right market.

A more interesting question is how long do you have to stay with the employer once the green card is approved?  This is a gray area where there is no clear guidance.  Therefore, I look back at what we do have guidance for, and that is Section 106(c) of AC21.  I recently had a client who was approved for his green card in four months while his wife’s application was still pending and was later referred to for an interview at the local immigration office.  At that time it was disclosed that he was no longer with the petitioning employer. The issue therefore arose as to whether he had had sufficient intent to stay with the employer?  If an applicant can port after six months, while the adjustment is pending, why can’t he port if the case has been approved?  I documented the case showing he had moved to “the same or similar position” as I would have  for someone whose adjustment of status was still pending.  If you have to leave your employer, to be safe, you should wait at least six months from the date of filing of your adjustment of status, regardless of whether your adjustment application is pending or has been approved.  While there is no clear guidance on this issue, there is  a good argument to be made if you wait.

As we begin the year of the Rabbit, Chinese astrologers are projecting “quiet, positive, and inspiring” things to come.  The Dow is currently above 12,000, and there are signs that the economy is in recovery.  Now if only Congress will do something for the legal immigrants waiting for years and years in the never ending waiting lines that haven’t been amended for over 20 years. And imagine if congress were bold enough to help the 11.2 million undocumented immigrants –that would be truly inspiring.

By | 2011-02-09T00:58:53-08:00 February 9th, 2011|Uncategorized|Comments Off on Should I stay or Should I Go? – An Immigrant’s Dilemma of Waiting.

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