Termination of Employment and Green Card Application

Below is a summary of the various scenarios that may impact the status of an H-1B holder if they experience employment termination as they move through the process of PERM labor certification, I-140 petition, and I-485 application. The 180-day rule comes into play only once the I-140 petition has been approved.

It is important to note that throughout the entire process, from PERM labor certification through to the issuance of a green card, an H-1B beneficiary who has been terminated by an employer can remain in the U.S. and work for another employer as long as their H-1B status is still valid.

The chart below focuses on what happens in case of termination by an employer during the PERM labor certification stage or if the employer withdraws the I-140 after it has been filed or approved, including even after I-485 application.

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*Priority date retrogression is when a priority date becomes current, but before USCIS has had a chance to adjudicate the case, the priority date retrogresses or gets pushed back. As an example, if your priority date is 1/1/2021 and according to the Visa Bulletin USCIS is processing applications with priority dates of 2/1/2021 or earlier, your priority date is current.

If a subsequent Visa Bulletin indicates that now only applications with priority dates of 12/1/2020 or earlier are being processed, your priority date of 1/1/2021 has retrogressed and has fallen out of “current” status. This means you’ll have to wait until your priority date becomes current again for USCIS to be able to process your application.

**According to the USCIS, “the applicant may be eligible under INA 204(j) for the adjustment application (unless USCIS revokes the approval of the petition under substantive grounds) if he or she satisfies all of the requirements to port based on a new same or similar position and the adjustment application has been pending 180 days or more at the time of withdrawal.”

 

Portability Provision INA 204(j)

Even though the I-140 petition was revoked it remains valid for priority date retention and for portability to allow the terminated employee to secure a new job offer. The major requirement is that the new job must be “the same, or substantially similar” to the job described on the labor certification. But there are other eligibility factors to consider as well.

To qualify for portability under INA 204(j), the adjustment applicant must meet the following eligibility requirements:

• The applicant is the beneficiary of an approved Form I-140 petition or of a pending petition that is ultimately approved.
• The petition is filed in the employment-based 1st, 2nd, or 3rd preference category.
• The applicant’s properly filed adjustment application has been pending with USCIS for 180 days or more at the time USCIS receives the request to port.
• The new job offer through which the applicant seeks to adjust status is in the same or similar occupational classification as the job specified in the petition; and
• The applicant submitted a request to port. If the applicant makes a request to port on or after January 17, 2017, the applicant must submit a Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) (Form I-485 Supplement J).

The new job offer may be with the same petitioner or with an entirely new employer, including self-employment. Applicants can submit the portability request and evidence with the adjustment application, at any in-person interviews, or in response to a request or other notice from USCIS.

Same or Similar Job

To determine if the new job offer is in the same or similar occupational classification as the job listed on the petition, the following factors may be considered when comparing the two jobs:

• The U.S. Department of Labor (DOL) occupational codes assigned to the respective jobs;
• Job duties;
• Job titles;
• The required skills and experience;
• The educational and training requirements;
• Any licenses or certifications specifically required;
• The offered wage or salary; and
• Any other material and credible evidence relevant to a determination of whether the new position is in the same or a similar occupational classification.

For more information, refer to the portability requirements on the USCIS website.

If No Similar Job is Available

Alternatively, if a similar job cannot be found, you may consider self-employment  or  find an employer willing to start the I-140 process over again. In this case, a PERM labor certification and I-140 must be filed anew.

Purpose of the 180-Day Rule

The reason for this 180-day rule is that the employee has invested their time working for an employer, instead of looking for other U.S. employers to sponsor them for a green card. The employee has reason to believe that their job is needed, and that the employer will proceed with their permanent resident petition.

If an employer withdraws the I-140 after it has been approved for at least 180 days or any time after that, the employee does not have to start over and at least retains an approved I-140 to be able to find a new job offer.

This is a built-in protection for foreign national employees in the U.S. who have gained skills and knowledge throughout their time working in the U.S. They should have a chance to continue being employed by a U.S. company despite being let go by the original petitioning employer.

Fraud and Misrepresentation

Your I-140 can be revoked by USCIS at anytime if there is a finding of fraud or misrepresentation in obtaining the I-140 in the first place. In that case, no matter when it is revoked, you will lose your priority date and may be subject to other penalties which can hinder your chances of immigrating to the U.S. in the future.

Sam Shihab & Associates Can Help

If you are an immigrant with any questions or concerns regarding your immigration case, H-1B visas, green card applications, or any other legal matter, speak at once to an experienced Columbus immigration attorney. A good immigration lawyer can help you and your family with any immigration issues you face and defend you if you’re accused of violating immigration law.

Our immigration attorneys will review your forms and applications for thoroughness and accuracy. Immigration laws will continually change, but an experienced immigration attorney will always be able to give you the most up-to-date immigration advice you need.

We have offices in Dublin and Columbus, Ohio, Michigan, and Texas. But our full suite of immigration law services is available to clients nationwide and even around the world.

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