Employment-based green card applications are closely tied to the sponsoring employer and the specific position offered. When an employee leaves, whether voluntarily or due to termination, the effect on the pending application depends entirely on which stage of the process has been reached at the time of departure. Understanding these distinctions is essential for both employers and foreign nationals navigating the immigration process.

The green card process consists of three stages: the PERM labor certification, the I-140 immigrant petition, and the I-485 adjustment of status application. The PERM labor certification is tied to a particular employer and job. It becomes invalid if the employee leaves during this stage, requiring the foreign national to find a new sponsoring employer and restart the PERM process from the beginning. One important deadline applies even after PERM approval: the employer must file the immigrant petition within 180 days of PERM certification, or the certification becomes invalid and cannot be used to support a future petition. If employment ends after the I-140 has been filed, the original employer may technically continue the petition, but once a person leaves, it is unlikely the company will want to continue the process and may choose to withdraw a pending petition. 

The situation is more favorable once a Form I-485 adjustment of status application has been pending for at least 180 days. Under the American Competitiveness in the Twenty-First Century Act (AC21), a worker whose I-485 has been pending for at least 180 days may change jobs and move to a different employer, provided the new position is similar to the position described in the original I-140 petition. This is commonly referred to as "porting." To notify USCIS of the change, the applicant must submit Form I-485 Supplement J. Importantly, if an employer withdraws the I-140 after it has been approved for at least 180 days, the employee does not have to restart the process and retains the approved I-140 in order to secure a new job offer. 

Regardless of the stage at which employment ends, priority date retention is often available. In most situations, the employee will be able to retain their previous priority date for use with a new I-140 petition, even if the new petition is filed at a later date. This is particularly significant for applicants in oversubscribed categories, such as EB-2 or EB-3 for nationals of India or China, where maintaining an early priority date can save years of waiting. However, if the employee loses their job before the I-140 is approved, there is no priority date to retain, and the applicant will lose their place in the visa queue and be unable to port to a new employer.

A separate consideration arises after the green card is approved. While no law mandates a minimum period of continued employment with the sponsoring employer, there must be evidence throughout the process that the employee genuinely intended to work for the employer in the sponsored position upon receiving the green card. USCIS may raise questions at the naturalization interview if an employee left the sponsoring employer very shortly after the green card was issued, and in some cases, lawful permanent resident status may be revoked and removal proceedings initiated. Any foreign national considering a job change, at any point before, during, or shortly after the green card is approved, should seek qualified legal counsel before acting. The timing and circumstances of an employment change can have lasting consequences on immigration status. To discuss your specific situation, please contact our office at (703) 348-1663. We are here to help you protect your immigration case and make informed decisions at every stage of the process.

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