This memo is intended for general information purposes only, relating to the impact of a layoff or other termination on employment-based green card sponsorship from the foreign worker’s perspective. This memo does not address employment law, tax, or other implications and is not a substitute for individual legal advice.
Impact of Termination on Employment-Based Green Card Process
This memo only addresses concepts and considerations related to certain categories of employment-based green card sponsorship. Review our memo on the Impact of Employment Termination on Nonimmigrant Status for more information in that regard.
INTRODUCTION
This memo discusses the potential impact of employment termination at various stages of the employment-based green card process, focusing specifically on EB-1, EB-2 and EB-3 preference categories. Certain employment-based green card categories allow the foreign national to self-petition and may not be directly impacted by the loss of employment. Further, since green card sponsorship is future in nature, the beneficiary of a process requiring employer sponsorship does not need to be employed by the petitioner throughout the process, though they usually are. As such, this memo generally assumes that the termination of employment also implies the termination of green card sponsorship by the employer, if applicable, though that may not necessarily be the case if the company intends to rehire them in the future.
Overall, the impact of a layoff or other termination of employment on the green card process depends on the preference category and timing, since this is typically a very lengthy, multi-step process. We summarize the potential impact and next steps in the event of termination at each stage of the process below.
IMPACT ON PERMANENT LABOR CERTIFICATION (“PERM”)
For certain preference categories, the first step of the employment-based green card process is obtaining a Permanent Labor Certification (“PERM”) from the U.S. Department of Labor (“DOL”). PERM applications are filed by the employer for a specific job offer and as such cannot be transferred to another employer.
Once the PERM is certified, the next step is for the employer to file an I-140 immigrant petition on the foreign national’s behalf. If the intended beneficiary is terminated at any point during the PERM process, the employer will not be able to file the I-140 petition based on the Labor Certification unless they still intend to offer the beneficiary permanent employment as a green card holder.
The foreign national does not retain any benefits or progress from any part of the PERM process or Labor Certification if their employment-based sponsorship is terminated prior to filing the I-140 petition. If the individual wishes to continue the green card process, they must start a new PERM process with another employer or pursue permanent residency through an alternative preference category not requiring a Labor Certification, if eligible.
IMPACT ON PENDING OR APPROVED I-140 PETITION
The impact of termination on a pending or approved I-140 petition depends on the preference category and other circumstances of the case. Certain preference categories that do not require a job offer, such as EB-1A Aliens of Extraordinary Ability and EB-2 National Interest Waivers (“NIW”), typically are not impacted by the termination of the beneficiary’s employment. I-140 petitions filed under these categories will remain a valid basis for seeking to adjust status or issuance of an immigrant visa, and the other contingencies described in this section do not apply, so long as the beneficiary continues to work in their area of expertise.
I-140 immigrant petitions requiring a job offer generally are impacted by the termination of the beneficiary’s employment, including EB-2 and EB-3 petitions based on a Permanent Labor Certification (“PERM”), EB-1B Outstanding Researchers, and EB-1C Multinational Managers and Executives. An employee with a pending or approved I-140 under one of these categories will no longer be able to rely on that I-140 petition as a basis for permanent residency if their employment, and thus the offer of permanent employment, is terminated (assuming a corresponding Form I-485 has not yet been filed). In other words, the I-140 petition will no longer be valid for the sake of filing an I-485 Adjustment of Status application (“AOS”) or issuance of an immigrant visa and, as such, the beneficiary must find another employer to obtain a PERM Labor Certification and/or I-140 on their behalf or pursue an alternative basis for permanent residency that does not require a job offer.
Even if a new I-140 or other immigrant petition is required to continue the green card process, the beneficiary may retain some benefits of the I-140 filing. For example, a valid I-140 approval from any employer can be used to qualify for an H-1B extension beyond the six-year maximum, even if the beneficiary is no longer employed by the I-140 petitioner. Beneficiaries of an approved I-140 will also retain their earliest priority date for future I-140 filings.
Withdrawal or Revocation of I-140 Petition:
Employment-based immigrant petitions requiring a job offer may be withdrawn or revoked for a variety of reasons, including by request of the petitioning employer or the termination of the petitioner’s business. The impact of an employer’s request to withdraw an I-140 petition or termination of the petitioning employer’s business depends on the timing of approval and other circumstances.
The petitioning employer is not required to withdraw the I-140 petition or notify USCIS when a beneficiary’s employment has been terminated, though they may choose to do so. If an employer requests to withdraw a pending or approved I-140, USCIS will not automatically revoke the petition if it has already been approved for at least 180 days or if a corresponding I-485 (AOS) application has been pending for at least 180 days by the time the withdrawal is requested. The I-140 petition in this scenario would be considered withdrawn but will remain valid for the following purposes:
- Priority date retention;
- H-1B extension beyond the six-year maximum; and
- If a corresponding I-485 application has been filed, the applicant may be eligible for portability under INA § 204(j) (explained below).
If the petitioning employer files a request to withdraw an I-140 petition that has been approved for less than 180 days, USCIS will automatically revoke the I-140 approval, unless a corresponding I-485 application has been filed and pending for 180 days or more. The I-140 will also be automatically revoked if the petitioning employer’s business terminates less than 180 days after approval unless a corresponding I-485 application has been filed pending for 180 days or more.
If a corresponding I-485 application has not been filed or is not eligible for portability under INA § 204(j), the beneficiary must obtain a new I-140 approval or other basis for green card sponsorship.
IMPACT ON PENDING I-485 ADJUSTMENT OF STATUS (“AOS”)
Individuals with a properly filed I-485 Adjust of Status (“AOS”) application are considered to be in a period of authorized stay while that application is pending with USCIS. This allows AOS applicants to remain in the U.S. while their I-485 application is being processed, even if their nonimmigrant status has expired since the filing of the Form I-485. This allowance is not immediately impacted by the termination of the applicant’s employment, but there are several other things that must be considered to remain eligible to adjust status. We highlight some of the main considerations below for employment-based green card applicants (individuals with pending I-485 based on I-140 petition).
The authorized period of stay afforded by a pending I-485 application allows the applicant to remain in the U.S. (including beyond any grace period associated with an underlying nonimmigrant status, if any); however, the pending I-485 application itself does not provide work authorization. I-485 applicants are also subject to strict travel restrictions. Individuals with a pending AOS generally must obtain a valid EAD to accept employment and Advance Parole to allow international travel, though limited exceptions may apply if the I-485 applicant maintains a valid nonimmigrant visa allowing dual-intent. These restrictions are explained in further detail below under “Work and Travel with Pending I-485”.
Further, while an employment-based I-485 application may not be immediately impacted by the termination of employment, the applicant must have a valid I-140 immigrant petition to remain eligible to adjust status. Requirements and next steps in this regard depend on the preference category and timing. Some preference categories do not require a job offer, and those that do may be eligible for job portability under INA § 204(j). In these cases, the I-485 applicant may remain eligible to adjust status without requiring a new I-140 petition. These requirements are explained further below under “Job Portability Under INA § 204(j)”.
If at any point the I-485 application is withdrawn or denied, the applicant will no longer be in an authorized period of stay based on a pending AOS, and any corresponding EAD or Advance Parole documents will become invalid. An individual in this situation typically must leave the U.S. upon the denial or withdrawal of their I-485, unless they hold a valid nonimmigrant status or other lawful basis for remaining in the United States. To help mitigate this risk, individuals often maintain a nonimmigrant status allowing for dual intent, such as H-1B, while their I-485 application is pending. This introduces additional complexities that must be considered, as the normal rules and options when a nonimmigrant worker is terminated do not apply the same to employees with a pending I-485 application, as explained further below.
Continue reading for more information on the considerations introduced above for applicants with a pending I-485 application to adjust status.
Work and Travel with Pending I-485 (EAD & Advance Parole):
Individuals with a properly filed I-485 Adjustment of Status (“AOS”) application are eligible for work and travel authorization by way of filing a separate I-765 Application for Employment Authorization Document (EAD) and an I-131 Application for Advance Parole (Travel Document). These are two separate applications that can be filed concurrently with or after filing an I-485 application to adjust status. USCIS will sometimes process the Forms I-765 and I-131 together and issue an EAD/AP “combo card” serving as both a work and travel permit, whereas other times they are issued as two separate documents (a stand-alone EAD providing work authorization and an Advance Parole document permitting travel).
Once approved, the I-765 (EAD) and I-131 (Advance Parole) documents respectively allow applicants to accept employment and travel internationally while their I-485 application remains pending. Departing the U.S. without Advance Parole can have serious consequences, including the abandonment of the I-485 application, so it is very important to consult a licensed attorney before traveling internationally with a pending adjustment of status.
If the I-485 application is withdrawn or denied, any corresponding EAD or Advance Parole documents will become invalid, and the applicant will no longer be in an authorized period of stay based on a pending AOS. An individual in this situation typically must leave the U.S. upon the denial or withdrawal of their I-485, unless they hold a valid nonimmigrant status or other lawful basis for remaining in the United States.
Maintaining Nonimmigrant Status with Pending I-485:
With H-1B and L-1 visas allowing dual-intent (extending also to H-4 and L-2 dependents), individuals can maintain those statuses while their I-485 adjustment of status (“AOS”) is pending. This means continuing to work and travel pursuant to a valid nonimmigrant visa petition (H-1B, L-1A, or L-1B or dependent H-4/H-4 EAD or L-2S) after filing an I-485 application. These individuals can also obtain an AOS-based EAD and Advance Parole as a backup to their nonimmigrant status. This may present multiple options for accepting new employment and avoiding travel restrictions when a nonimmigrant worker is terminated.
H-1B status provides the most flexibility, as it can generally be transferred to any employer that timely files an H-1B Change of Employer petition on the beneficiary’s behalf. If the individual has obtained a valid EAD and Advance Parole based on the filing of their I-485 application, they may accept employment and travel internationally based on those documents instead of maintaining their nonimmigrant status, though that may make it more difficult to revert to the H-1B or join a qualifying employer as an L-1 in the future.
There are many nuances and other factors to consider when it comes to maintaining an underlying nonimmigrant status after the filing of an I-485 application to adjust status (“AOS”), and the typical rules and options when a nonimmigrant worker loses their employment do not apply the same to individuals with a pending AOS. Individuals in these situations should consult a licensed immigration attorney to fully understand their options, risks, and other considerations to determine the best path forward for their individual circumstances.
Job Portability Under INA § 204(j):
INA § 204(j) allows job portability for certain employment-based adjustment of status (“AOS”) applicants. If eligible under this provision, individuals with a pending Form I-485 may be able to “port” their I-140 immigrant petition (and underlying PERM Labor Certification, if applicable) to a new employer and qualifying job offer without having to file a new PERM and/or I-140.
Job portability under INA § 204(j) applies to applicants with a pending I-485 (AOS) application based on an I-140 petition classified as EB-1, EB-2, or EB-3, with two exceptions: EB-1A Aliens of Extraordinary Ability and applicants seeking or granted an EB-2 National Interest Waiver (“NIW”) under INA 203(b)(2)(B)(i). As noted above, the EB-1A and NIW categories do not require a job offer, and thus, do not qualify for or require job portability under INA § 204(j). Rather, applicants in these categories are generally free to change jobs and employers without impacting their pending I-485 or requiring a new I-140, so long as they continue working in their field of expertise.
I-485/AOS applicants in applicable employment-based categories may be eligible for job portability under INA § 204(j) if the following requirements are met:
- The applicant is the beneficiary of an approved Form I-140 petition or of a pending petition that is ultimately approved;
- This includes I-140 petitions under the following categories: EB-2 and EB-3 based on a PERM Labor Certification, EB-1B Outstanding Researchers, and EB-1C Multinational Managers and Executives.
- The applicant has a properly filed I-485 Adjustment of Status application that has been pending with USCIS for 180 days or more at the time of requesting portability under INA § 204(j); and
- For portability purposes, counting the number of days the adjustment application has been pending begins on the day the applicant properly filed an I-485/AOS application with USCIS and includes every subsequent calendar day until USCIS receives the applicant’s request to port, so long as the application remains unadjudicated.
- The new job is in the same or similar occupation as that specified in the underlying I-140 petition supporting the pending Form I-485.
- USCIS considers a variety of factors to determine whether the new job offer is in the same or similar occupational classification as that specified in the underlying I-140, including the job duties, requirements, and wage, among other things. No one factor is determinative, USCIS will consider all relevant factors and evidence in the totality of the circumstances.
If the above requirements are met, the applicant may be able to change jobs and employers without impacting their pending I-485 application and without having to file a new PERM and/or I-140 petition. The procedure for requesting job portability under INA § 204(j) may vary depending on the circumstances.
See the “Job Portability after Adjustment Filing and Other AC21 Provisions” chapter of the USCIS Policy Manual for more information on INA § 204(j) portability requirements and related considerations for employment-based AOS applicants and consult a licensed immigration attorney for direct legal advice.
CONCLUSION
It is important to note that every situation is unique. This memo provides a high-level overview of the potential impacts on the employment-based green card process when a foreign national’s employment is terminated, but it is not comprehensive of all possible circumstances or considerations and does not act as a substitute for direct legal advice. Individuals in all cases should consult a licensed immigration attorney to fully understand the implications, options, and requirements for their specific situation.
