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.
|Stage||Event of termination of employment or withdrawal of petition||Priority Date||Impact & Benefit||Next Steps|
|PERM labor certification||If you are terminated while PERM labor certification is pending||You do not have a priority date set||You don’t receive any benefit from filing a PERM labor certification that is withdrawn.||You may seek other employment if within H-1B validity period and pursue a new PERM labor certification filing with a new employer|
|If you are terminated after PERM is approved but before I-140 is filed.||You do not have a priority date set||You do not receive any benefit from an approved PERM labor certification.||You may seek other employment if within H-1B validity period and pursue a new PERM labor certification filing with a new employer|
|I-140 petition||If you are terminated after PERM is approved AND after I-140 is filed but before it is approved AND employer withdraws pending I-140 petition.||You do not have a priority date set||You do not receive any benefit from an approved PERM labor certification and a withdrawn unapproved I-140 petition.||You may seek other employment within H-1B validity period|
|If you are terminated within 180 days of I-140 approval AND employer withdraws I-140 within 180 days.||Priority date locked in.||Priority date is locked in.||You may seek other employment if within H-1B validity period.
Note: the original employer can refile the withdrawn I-140 using the same approved PERM at any time in the future and reestablish your priority date.
|If you are terminated within 180 days of I-140 approval and employer DOES NOT withdraw I-140 within 180 days of approval or withdraws it after 180 days.||Priority date locked.||Can extend H-1B status beyond 6 years and get H-4 EAD approvals for spouse.||Seek new employment and file new PERM and I-140 petition while maintaining priority date from original I-140.
Note: original employer can refile withdrawn I-140 using the same approved PERM at any time in the future and you keep your priority date.
|If you are terminated after 180 days of I-140 approval and employer withdraws I-140 after 180 days of approval.||Your priority date is locked.||Can extend H-1B status beyond 6 years and get H-4 EAD approvals for spouse.||Seek new employment and file new PERM and I-140 petition while maintaining priority date from original I-140.|
|I-485 application||If you are terminated while both the I-140 and I-485 are pending with USCIS AND employer withdraws I-140 petition.||You do not have a priority date set.||Your I-485 (green card application) will be denied.||Seek new employment if you have remaining H-1B time and file new PERM and I-140.|
|If you are terminated within 180 days of I-140 approval and within 180 days of filing I-485 AND employer withdraws I-140 petition.||Your priority date is locked.||Your I-485 (green card application) will be denied.||Seek new employment if you have remaining H-1B visa and file new PERM, I-140, and I-485 if priority date still current.|
|If you are terminated after 180 days of I-140 approval and within 180 days of filing I-485 AND employer withdraws I-140 petition AND priority date is current.||Your priority date is locked in.||Your I-485 (green card) application will be denied if you can’t show a permanent job offer in response to a USCIS RFE (Request for Evidence).
But even if the priority date is current, there is a chance USCIS may not get to your application in time.
Priority date can also retrogress*, so your application will continue as “pending” until priority date is current again.
|Seek new employment if you have remaining H-1B visa and file new PERM, I-140, and I-485 if priority date still current.
If USCIS does not get to your case or your priority date retrogresses*, you can wait while your priority date remains unavailable until you cross the 180-day mark after filing the I-485 and find another “same or similar job” to potentially continue with the green card application.
Note: you cannot extend H-1B status beyond 6 years in 3-year increments if the priority date is current, only in 1-year increments. If you are on valid H-1B, your spouse will get H-4 EAD approvals even if the priority date is current.
|If you are terminated PRIOR TO 180 days OF YOUR I-140 approval But after 180 days of filing I-485 AND employer withdraws I-140 petition.||Your priority is locked in.||An approved I-140 will not be invalidated due to employer withdrawal||Employee can change employer to same or similar job classification using supplement J. USCIS will not deny a case and will give a chance to file supplement J by way of issuing a NOID|
|If you are terminated 180 days after I-140 approval and within 180 days of filing I-485 AND employer withdraws I-140 petition, but priority date is NOT current.||Your priority is locked in.||USCIS may issue an RFE to show permanent employment which may cause an adjustment of status denial.
If no RFE issued: you have a chance to cross the 180-day mark after filing the I-485, find a “same or similar” job elsewhere and potentially continue with the green card application.
|Can extend H-1B status beyond 6 years and get H-4 EAD approvals for spouse.|
|If you are terminated 180 days after I-140 approval and after 180 days of filing I-485 AND employer withdraws I-140 petition.||Priority date is locked, and can be current or in retrogression*||Can extend H-1B status beyond 6 years and get H-4 EAD approvals for spouse.
In addition, I-140 portability kicks in**
|Revoked I-140 remains valid to find “same or similar” employment.|
*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.
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