For employment-based candidates, switching jobs during the green card process is possible, once the I-485, Supp J has been pending for 180 days, without having to go through the arduous PERM process and I-140 filing.
The portability rules allow an applicant to switch jobs once the I-485 has been pending for 180 days as long as the new job offer is the same or similar as the original job offer. Therefore, in order to switch jobs, you need to make sure that the new job offer is sufficiently comparable to the original job. Ideally, you will want to obtain a job offer with the same job title, same SOC code and the same/similar job description so that it is less likely that USCIS will question whether the two positions are the same/similar.
However, even if the jobs are identical this is not necessarily the end of the story. USCIS has recently started issuing a new RFE which requires the applicant to demonstrate the bona-fides of the job offer. USCIS is requiring Petitioner’s to provide the following documents:
- The employer’s articles of incorporation, business licenses or permits;
- Recent annual reports, shareholder summaries, Federal Tax returns, bank statements or other such documentation verifying your employer’s financial standing;
- Letters from local governments, trade associations or other regulatory bodies naming the employer;
- Business cards, brochures, or advertisements for the employer;
- Other such documentation indicative of a viable, ongoing business concern.
USCIS’ request is an attempt to ensure that the Petitioner is doing business and genuinely wants to offer the beneficiary a position. It is also a way for USCIS to determine if the new employer has the ability to pay the beneficiary the proffered wage. Bear in mind that when the original I-140 was filed USCIS considered whether the original Petitioner had the ability to pay. However, when a beneficiary switches jobs at the I-485, Supp J stage, this deprives USCIS of the opportunity to consider the financial ability of the new employer. Therefore, we can expect to see more RFEs like this going forward.
For applicants switching jobs and submitting Supp J., it is would be prudent to submit copies of the above documentation together with a persuasive argument as to how the new employer has the ability to pay the proffered wage, i.e. based on the new employer paying the proffered wage as evidenced by paystubs and/or a healthy net income on the company’s most recent tax returns.
If you have questions regarding the above, please reach out to PLG Partner, Chris Prescott at cprescott@patellegal.com.