If I currently hold an H-1B visa, and my employer is sponsoring me for a green card, how can I change jobs while remaining on the path to a green card?
That’s what Chao*, a software engineer who was born in China, recently asked during a consultation with our team at Alcorn Immigration Law. He also asked us to explain the process, step-by-step, and advise him when he could change jobs.
Leaving an employer that has already sponsored you for a green card—or has plans to do so—without losing your place in the green-card line can depend on several factors: the very specific details of timing, whether you have a cap-subject or cap-exempt H-1B, and whether you can find a new employer willing to sponsor you for an H-1B.
When Chao consulted us, he had recently received a three-year extension on his H-1B status. And last month, his current employer began the process of sponsoring him for a green card.
The factors of every person’s situation are always unique, so we recommend consulting with an attorney to discuss the specifics of your immigration status, history, and goals.
The H-1B is a dual-intent visa, which means those who hold one may have either nonimmigrant intent or immigrant intent. Nonimmigrant intent is the intent to leave the U.S. at the end. Immigrant intent is the intent to apply for permanent residence, also known as a green card.
Six years is the maximum time you can hold an H-1B status—unless you petition for a green card on your own or your employer sponsors you. In either case, the key is to start the green card process well in advance of one year before the end of the six-year time limit.
Overview: Green Card
Your employer can sponsor you for one of several employment-based green cards including EB-1, EB-2, and EB-3. Otherwise, you can self-petition for either the EB-1A Green Card for Aliens of Extraordinary Ability, EB-2 NIW National Interest Waiver green card, or EB-5 Investor Green Card for Employment Creation.
If you apply for a green card on your own, it’s safest to maintain H-1B status to remain in the U.S. in parallel. Various points in the H-1B to green card journey have different consequences to a job transfer.
To begin sponsoring you for a green card, your employer must apply for Permanent Labor (PERM) certification from the U.S. Department of Labor. PERM certification requires an employer to determine the prevailing wage for your position and set your salary to that amount. The employer must also go through the process of recruiting for your position to see if there are any able, willing, and qualified U.S. workers to fill the petition. If there are none, the employer may proceed with certifying the PERM.
Employers can avoid the PERM certification and recruitment process if the candidate qualifies for any of these green cards:
- EB-1A Green Card for Aliens of Extraordinary Ability
- EB-1B Green Card for Outstanding Researchers and Professors
- EB-1C Green Card for Multinational Managers and Executives
- EB-2 NIW (National Interest Waiver)
Retaining Your Priority Date
Your priority date is either the date U.S. Citizenship and Immigration Services (USCIS) received your green-card application (Form I-140) or the date the Department of Labor received your employer’s labor certification application. If the green-card petition or labor certification was incomplete when it was filed, it will be returned to the petitioner. Your priority date will be delayed until the completed petition is received.
If you were born in a country that typically hits the per-country green card cap, such as China or India, your priority date determines when you or your employer can begin the final step in the green-card process. That means either filing Form I-485 if you are inside the U.S. or the immigrant visa process with the National Visa Center if you will be applying in your home country.
The Visa Bulletin shows which green card petitions from which countries and with what priority date can move forward to this final step—and which petitions must continue to wait. Individuals born in China and India may face multi-year or multi-decade waits for employment-based green cards given the current system and the high demand.
If Chao receives a priority date and transfers his H-1B to a new company before it is current in the Visa Bulletin, he will retain his priority date under most circumstances. The new employer can restart the PERM and I-140 process to transfer his green-card sponsorship.
If Chao’s priority date has become current and his prior employer filed Form I-485 less than 180 days ago, the green card process will be lost. However, under a law called AC21, if Chao waits at least 180 days after his employer files the I-485, he can transfer to a “same or similar occupation” at another company. This is great for Chao and for the new company because they will not have to invest the time or money to restart from the beginning.
Chao’s current employer is still waiting for PERM certification so, it has not yet filed Form I-140. The PERM certification process typically takes two to three months. If the Labor Department audits an employer’s PERM application, getting approval could take seven to eight months. Unfortunately, premium processing is not available for the PERM certification process. Moreover, submitting a green-card petition (Form I-140) cannot be done concurrently.
Premium processing is available for Form I-140 (Immigrant Petition for Alien Workers). Premium processing enables a petitioner to get USCIS to make a decision on a petition within 15 days for a $1,410 fee. Chao could opt to pay for premium processing if his employer is unwilling to do so. Without premium processing, USCIS will take more than three months to process Form I-140 depending on the type of green-card.
Remain prudent by maintaining your H-1B sponsorship in parallel with a job transfer even if you already possess a work permit (EAD or employment authorization document) from the I-485 process. That’s particularly important given the current immigration scrutiny.
For a transfer, a new employer would still have to submit a full H-1B petition on Chao’s behalf. However, Chao should not be subject to the annual H-1B lottery. Once Chao or his new employer begins the green-card process, Chao’s H-1B can be renewed beyond the six-year time limit.
Reach Out to Us
Do you have a question about the best strategy for you to remain in the U.S.? For an employee? For your family? Reach out to us for a consultation. We can help you find the right option based on your goals, circumstances, and timing.
* To maintain confidentiality, the name of the client has been changed, and details may have been omitted or slightly altered.