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Employment-Based Adjustment Applicants

By Vanessa S. Barcelona

  Many of you may be all-too familiar with this scenario: The adjustment of status application was filed quite some time ago, on the basis of an approved I-140 petition filed by your employer a few years back. While the application for adjustment is pending, you find a better job offer, or the relationship between you and your I-140 petitioner sours.

Because you have a pending adjustment case, you are granted work authorization. With that card, you work for an employer other than the employer whose approved petition is the basis from which your pending application is based. Your application for adjustment is still pending. What now?

Once the employment relationship has ended, the employer may choose to, in the exercise of discretion, withdraw the I-140 petition. They may choose not to.

If withdrawn, however, then there is no basis for the pending adjustment of status application and it can be denied. If this is not done, then the I-140 beneficiary (the principal adjustment applicant) may continue working with authorization, while the adjustment is pending, and during that time seek a different sponsor.

A new petition may thereafter be filed. As long as the adjustment of status is not denied before a new I-140 is approved, then the new I-140 petition can be used to support a pending adjustment application. The new I-140 must be approved before steps are taken, if any, to revoke (i.e., cancel) the previously approved I-140.
Easier said than done? Not necessarily.

If you are a health care worker – a Nurse or a Physical Therapist – you are allowed by the immigration laws to have an I-140 petition filed on your behalf without going through the long and tedious labor certification process.

An I-140 petition can take as little as 3 weeks (it has happened!) to be approved. On average, however, it will be pending for approximately 6 months. And if you are neither a nurse nor a physical therapist? A change in the employer may not necessarily mean the end of your hopes to obtain lawful permanent residency in the U.S.


However, you are placed in a precarious situation by the termination of your employment. If you have a pending adjustment of status on the basis of an approved application for labor certification, a termination of the employment relationship may require that a new labor certification application be filed. As many of you know, this can take years and years — unless a new application is filed under the expedited 

The INS, through its Business Services Branch Chief, Mr. Thomas W. Simmons, recently responded to an inquiry on the same subject. His response is significant, as it offers guidance into the manner in which the INS will treat this issue when adjudicating employment-based applications for changes/extensions of status and/or employment-based applications for residency. According to Mr. Simmons, "An employee who remains on a company's payroll and utilizes any temporary leave status (sick leave, annual leave, leave without pay connected to legitimate necessities, etc)....would be considered to be maintaining status."

Reduction in Recruitment program. Once approved, a new I-140 can be filed. If it is approved before the pending adjustment of status is adjudicated, then you need not file a new I-485, but may instead proceed with the pending application for adjustment.

Note, however, that termination of the employment relationship need not necessarily mean that a new application for labor certification be filed. This is because the termination of employment with the I-140 petitioner need not mean that the offer of employment is withdrawn. 

Just because you are no longer working for the I-140 petitioner, it does not mean that you will not be working for them in the future, say, after the adjustment of status is approved. 

Remember, the entire employment-based adjustment of status process is based on an "offer" of employment. It is true that more often than not, an employer will not sponsor you unless you are already working for them. But this is more the common scenario and not necessarily the rule. 

Thus, you need not be working for the petitioner in order to be the beneficiary of an employment-based petition. You must, however, work for them once the petition is approved. 

Case in point: there are many beneficiaries of labor certification applications who are outside the country. If so, employment with the petitioner does not begin until they are interviewed by the U.S. Consulate abroad and are able to enter on the basis of an approved immigrant visa. If you are in the U.S., therefore, and were working for the I-140 petitioner, and that employment has since terminated, you may still proceed with the adjustment of status as long as it can be proved, to the satisfaction of the INS officer, that you will be returning to the petitioner, and that the intent to employ you still exists. Note that this will be handled on a case by case basis.

VANESSA S. BARCELONA is a partner with the law offices of Barcelona & Pilarski, P.A. She obtained her law degree from the University of Florida. She is a member of the American Immigration Lawyers Association, the American Bar Association, and the Florida Bar. Please send all e-mails to: vsbarcelona@earthlink.net


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