My [company/industry] is going through a number of changes and I am uncertain about my future employment. My [I-140/Labor Certification] for my company [is pending/was approved] and I am [currently waiting/ have already filed] for adjustment of status but it appears it will be awhile before the final appointment for the green card because of [health care certification standards, priority date movements, etc.] If I lose my job or my position is cut, does the whole green card process fail?

A MEGA-DISCLAIMER FROM JOSE: as you can imagine by the wording of that question, there are a zillion variables upon which the answer relies. We are probably getting 10 inquiries like this per day (at least), with the majority coming from rehab professionals concerned about industry changes. Because of the many requests, I am addressing this as an "FAQ," but I have to warn you that this is SUPER complex and that you should be very careful if you choose to make decisions based on what you learn here. Warning -- unless you are VERY familiar with permanent residency process for professionals, the following will leave you more confused than you are already about U.S. immigration policies...

First a few basic concepts:

• The employer of an H-1B visa holder must notify the INS in the event of any "material change in employment," which includes relocation to a worksite in a different town, even if for the same employer, unless such relocation was addressed in the filing of the initial I-129 petition. This notification involves a new petition.

   

   

• Remember: while your H-1B is a petition stating your employment relationship NOW, the green card process -- from Labor Certification through the final Adjustment of Status interview -- is about LATER. The process is a manifestation of the INTENT your employer has to hire you on a full-time, permanent basis ONCE YOUR GREEN CARD IS APPROVED and of your INTENT to join the employer on a full-time, permanent basis ONCE YOUR GREEN CARD IS APPROVED. My point for wording it this particular way: while it is NORMAL to keep working for the employer sponsoring your green card, it is not essential during the time the adjustment is pending. If your employer approves, you can work for another company -- shoot, you can cook fries at McDonalds(!) -- AFTER the adjustment is filed up until the final interview. AT THAT TIME, however, you must intend to rejoin your employer on a full-time basis. INTENT is what must be documented to insure that there is a record that your departure is TEMPORARY, that you will be rejoining the company, and that both you and the company are keeping the employment relationship alive.

   

   

• If your H-1B is current- or if it has expired- and your adjustment of status is pending, you are an "adjustee." However, if you search the regulations, you will not find the word. Basically, a person who has filed an I-485 and is in adjustment proceedings is an "adjustee," meaning, in plain English, "legal limbo." The INS has issued contradictory guidance on how the ongoing validity of an H-1B petition is affected by filing for adjustment: one opinion said the filing meant termination of nonimmigrant status; another said it did not. While it is not necessary to perpetuate your H-1B status once your adjustment is pending, many clients choose to do so. Most employers won't pay for this since, technically, it is not necessary.

   

   

• An "adjustee," then, is in LIMBO. What does this mean? Well, it means you can remain in the U.S., apply for employment authorization, get advance parole for travel purposes, and legally await your final interview. If you did the legal research -- as I did years ago when I was younger, more foolish, but mostly had more TIME -- you will find that once you are an "adjustee," a number of indiscretions may be forgiven. For example, there are cases holding that a person who engages in unauthorized employment while the adjustment is pending -- I suppose because they did not to apply for the Employment Authorization Document (EAD) -- cannot be denied adjustment if such violation occurred AFTER the I-485 was filed. So, this ethereal status offers some vague protections, but none any reasonable person would rely on. The short answer: ALWAYS file for the EAD, and renew 5 months in advance to be extra careful. But be aware that once you use your EAD, you may no longer travel on your H-1B without also obtaining advance parole.

   

   

• So what happens to a person who was in valid H status when the adjustment was filed, got the EAD, and then let the H expire without renewal? They call me three days before the EAD is expiring telling me they need to renew it. I explain that the Service Centers are taking over 4 months. They freak, yell and scream. They realize that it may be several months before they can again have a valid EAD...what can they do? Well, I wish the answer was clear, but it is not. The regulations throughout stipulate that to work, employment authorization is required. Yet we have that old line of thought -- all of it predating the Immigration Act of 1990, which pretty much changed everything -- which says that if you DID work without the EAD while pending adjustment, the adjustment was still ok...so what do you tell your client? A CONSERVATIVE attorney STILL says: don't work without the EAD. WE are conservative attorneys when it comes to compliance with the letter of the law, but these vague areas are things you as immigrants need to know about, even if our well-intended writing only confuses you...

   

I will address issues involving change of employer due to staffing changes in the company that petitioned you; as I do so, please understand that we are addressing IMMIGRATION LAW ISSUES ONLY, NOT LABOR LAW. We are not a labor law firm and are not qualified to analyze your potential liability in the event you, as an employer or employee, break an employment agreement (whether written or oral) as a result of avoiding immigration pitfalls. If such issues exist in your case, it is imperative that you direct them to a qualified Employment and Labor attorney licensed in your state BEFORE making any decisions. Under no circumstances should you substitute our comments here for the advice of the attorney handling your immigration case...they know a lot more than we do about the particulars of your situation! That being disclaimed, please make sure you read the response which corresponds to your particular situation:

THE ANSWERS:

ONLY FOR PHYSICAL THERAPISTS OR REGISTERED NURSES WITH ADJUSTMENT PENDING AND AWAITING FINAL CERTIFICATION RULES:

Because you are exempt from labor certification, the regulations simplify your process: if the job offer upon which your I-140 relies fails, you simply have to get another job offer from another company. The regulations say that you can essentially show up to your interview with a completed I-140 in the name of the new PT or RN employer, and the officer at the local INS office is supposed to adjudicate. After one too many adventures with local INS officers unfamiliar with this, we have, for the past two years, been filing the I-140 with the Service Center (as normal) and then sending you to the interview with the new notice of approval for the new employer. At approval, the INS will simply note the new I-140 approval and that will be the employer of record for green card purposes.

ONLY FOR PERSONS WHO STILL HAVE THE LABOR CERT PENDING OR ARE AWAITING PRIORITY DATES AND HAVE NOT YET FILED FOR ADJUSTMENT:

If you feel your job may not be around when the time comes for the green card, this is a critical issue you need to address frankly with your employer. In our experience, reputable employers are generally sensitive to the long delays in immigration processing and are willing to work with you to preserve your pending case. Only in disreputable companies and in the most extreme cases involving bankruptcy and similar corporate dissolutions have we seen a failure to try and assist.

As you talk to your employer, understand that there is a lot -- namely, the future -- which is not in their control. Consider the following:

• changes in job staffing due to economic shifts
• increases in delays at the Department of Labor due to funding shortfalls
• increases in delays at the INS, with priority date movement, etc.
• changes in legislation

All of these factors can potentially affect your pending green card, and no matter how concerned your employer, most of these are out of their control. So what CAN you do?

Well, if you are in THIS subgroup, you don't have your adjustment pending, so you can't have employment authorization. This means that if your employer IS willing to let you reassign to another position but still believes that the position will be open to you when the final day comes for approval of the green card, you can transfer to Employer B with a new H-1B petition BUT YOUR PENDING GREEN CARD can remain with employer "A." The key: DOCUMENTING this future intent in writing and not leaving the possibility for the INS to misinterpret this temporary interruption as the termination of the employment relationship critical for the continuation of the green card process.

So when is it really a "temporary interruption" permissible under the law and when is it a "termination" ending all possibility of concluding the green card process with that employer? Well, again, "intent" is the key. As long as both parties intend that the relationship continue upon approval of the green card and you memorialize this in writing, all is okay. The minute one of you says "I quit" or "you are fired/laid off/terminated/whatever," the game is over. Only by mutual cooperation resulting in the agreed-upon temporary interruption in the employment relationship can you preserve the green card process once underway.

ONLY FOR LABOR CERTIFICATION BENEFICIARIES WHOSE LABOR CERT IS ALREADY APPROVED AND WHO ARE PENDING ADJUSTMENT OF STATUS:

Unlike the PTs and RNs who have the relative freedom to replace their employer if their job offer falls through for green card purposes, you are still tied to your employer. However, unlike others who have not yet been able to file for adjustment, YOU have employment authorization, or at least you can get it. How does this affect you? Well, the same logic above holds here: if your employer is willing to let you go to another company in the interim but still assures you that the labor cert position applied for will be available when its time for your final INS interview, then you too can work elsewhere in the interim. Since you have an EAD in hand, there's no need to file for an H change...you can just go to work for the new, TEMPORARY employer. But you need to document both your intent and that of your company: the mutual commitment to your permanent, fulltime position with them must be memorialized in writing.

Further, the new American Competitiveness in the 21st Century Act (AC21) provisions will allow schanges in employers in certain circumstances after an adjustment has been pending 180 days. However, as for the date this FAQ was last updated, INS has not yet published the final regulations governing AC21.

Whew...that was a doozie and it took me all day between phone calls, but I sure hope it helps. I've lost my fear of getting too `technical' with you guys...

Okay, back to the grind. Hope you learned something.

Jose