Sponsoring a foreign national employee for a green card is a significant investment of time, money, and resources. Employers who have gone through the PERM labor certification process know firsthand how costly and time-consuming it can be. The PERM process alone can cost an employer several thousand dollars, and that is before accounting for I-140 filing fees and legal costs. When a sponsored employee resigns or is terminated before the process concludes, employers are understandably concerned about what it means for the case and their investment. The answer depends on where in the process the departure occurs. 

When an Employee Leaves Before the I-485 Is Filed

The PERM labor certification is tied to a particular employer and job. If the employee leaves at this stage, the certification becomes invalid, and the process must start from the beginning with a new sponsor. Even if the labor certification has already been approved, the employer must still file the I-140 immigrant petition within 180 days; failure to do so renders the certification invalid. For employers, this means that if an employee resigns after PERM approval but before the I-140 is filed, the work done to that point cannot be transferred or reused. Once a person leaves a company, it is unlikely the company will want to continue the sponsorship process, though nothing in law prevents an employer from doing so as long as they can continue demonstrating an ability to pay the sponsored individual's wages. 

After the I-485 Is Filed: The 180-Day AC21 Rule

Once the employee has filed their I-485 Application to Adjust Status and it has been pending for at least 180 days, the situation changes considerably, and employers should understand the implications. Under AC21, a worker whose I-485 has been pending for at least 180 days may port to a different employer to work in the same or similar occupational classification, without the original employer's involvement or consent. From a practical standpoint, this means the employer's role in the green card process effectively ends at that point. Under USCIS guidance, once the I-140 is approved, an employer's "ability to pay" obligation applies only up to the time of approval if the employee later changes jobs under AC21 portability provisions. Employers should be aware that withdrawing the I-140 after it has been approved for 180 days or more does not derail the employee's case; the employee retains the approved I-140 and can use it as a basis for continuing their green card process with a new employer.

Employer Risks and Considerations When Terminating a Sponsored Employee

Employers who are considering terminating a sponsored employee should proceed carefully. If the I-485 application is withdrawn or denied as a result of the employment ending, the employee's EAD and Advance Parole documents also become invalid, and the employee may be required to leave the United States unless they hold a separate valid nonimmigrant status. While employers are generally not legally liable for these consequences, the situation can create significant disruption and, in some industries, reputational risk. U.S. immigration law does not establish a minimum length of time for which a foreign national must continue working for the sponsoring employer after receiving the green card, and assuming the employment relationship is at-will, the employer may terminate the employee at any time. However, if an employer ends the relationship too soon after the green card is approved, USCIS may question whether the employer and employee ever genuinely intended the position to be permanent, raising concerns about the integrity of the original sponsorship. 

Employee turnover is a business reality, but when sponsored employees are involved, the stakes are higher, and the timing matters enormously. Employers are best served by working with an immigration attorney from the outset to understand their obligations at each stage, manage costs strategically, and respond appropriately when employment changes occur. Contact our office at 703-348-1663 to discuss your company's green card sponsorship situation and get guidance tailored to your workforce.

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