Many foreign nationals working in the U.S. on temporary visas are able to obtain permanent U.S. green cards by virtue of “employer sponsorship.” Procedurally, this means that a U.S. employer, after some required preliminary—and unsuccessful—efforts to recruit U.S. workers for the same job (called "labor certification" or "PERM"), submits an I-140 Petition for Immigrant Worker to U.S. Citizenship and Immigration Services (USCIS).
Once USCIS approves the I-140 petition and the foreign national’s priority date has become current (meaning that a visa number has become available despite annual limits), the foreign national can apply for the actual green card. This is done by submitting an I-485 application to USCIS.
Unfortunately, sometimes a foreign national will lose his or her job while this green card application is still pending with USCIS. U.S. employers are not required by law to keep a foreign worker employed, even if the worker is waiting on a green card application. Currently, there is nothing to stop an employer from terminating the foreign worker’s job. But layoffs have become all too common since the 2020 onset of the coronavirus or COVID-19 pandemic.
Let's look further at whether and how green card applicants who lose their jobs during the pendency of their applications can continue on the path to receiving a U.S. green card. This article also outlines how these applicants can maintain lawful status in the U.S. while waiting to resolve their employment situation.
Although it can be a shock to lose one’s job while waiting for a green card, there is good news. For some , it might still be possible to get U.S. residence. The bad news is that the foreign national will likely need to begin the entire employer sponsorship process over again, with a new employer.
This process entails not only finding another U.S. employer willing to sponsor you, but waiting while that new employer completes the entire labor certification process (PERM) and then files a new I-140 for you. Just like with the previous I-140 petition, once USCIS approves it and your priority date becomes current, you can file a new I-485 application.
Luckily, if you find yourself in this situation, you will be able to retain your old priority date, and USCIS will use this date for purposes of your new I-140 petition.
For example, if your previous I-485 application was filed based upon an I-140 with a priority date of December 1, 2018, you will be able to retain that priority date with your new I-140 petition, even if your new petition is not filed until December 1, 2020 (or any other date in the future). If you're applying in a high-demand category, that's a huge benefit for speeding up your application.
Also, for some foreign workers, there is NO requirement to go back to square one and begin the whole sponsorship process anew. Specifically, this is true if your I-485 application (based on your original job offer) has been pending for longer than 180 days. In that case, if you are able to find a job position with another employer, and this new job position is similar to the position from your previous I-140, you can make use of a U.S. law referred to as AC21.
Under AC21, a worker whose I-485 application has been pending for at least 180 days may change jobs and move to a different employer (that is, an employer who did not sponsor the worker’s original I-140 petition) and work in a position that is similar to the position in the previous I-140. These 180 days are counted from the receipt date of your I-485 application. For example, if the receipt date for your I-485 is January 1, 2020, you can use AC21 as a basis to change employers any time after June 30, 2020, but no earlier.
Importantly, you can make use of the AC21 provisions only if you are moving to a job position that is similar to the position from your original I-140 petition. For example, let’s say your original I-140 was for the position of Computer Programmer. You lose your job but are able to find a new position as Programmer Analyst with another employer. Assuming all other conditions are met, you should be able to take advantage of AC21 and change jobs.
This change in jobs is referred to as “porting.” Porting is typically a simple process, and foreign workers port to different employers every single day. The procedure to notify USCIS of your new job is to submit Form I-485 Supplement J to provide the details concerning your new job and employer. You submit the Supplement J when you change jobs after the 180-day mark, when you respond to a Request for Evidence or Notice of Intent to Deny for your pending I-485 Adjustment Application, or when you appear for an interview at a local USCIS office to review your Adjustment Application.
There is no filing fee. You submit the Supplement J to the same address for submitting I-485 applications or in-person at your interview.
In this situation, USCIS will continue to process the I-485 adjustment of status application. There should be no interruption in the process due to porting.
Another major concern for foreign nationals who have lost their jobs during the green card process is maintaining lawful status after their employer lays them off. If you have already filed the I-485 application, you are in “authorized status,” and losing your job, in and of itself, does NOT automatically jeopardize your status.
You will remain in authorized status in the U.S. until USCIS reviews your case (calls you in for an interview) and denies the I-485 application.
Additionally, at the time you file your I-485, you should have also filed for Advance Parole ("AP," using Form I-131) and for Employment Authorization (an "EAD," using Form I-765). If you did not file these applications, you should file them as soon as possible, as they will give you significant immigration benefits.
The AP allows you to travel abroad while you await a decision on your I-485 (although international travel is NOT recommended until you have sorted out your employment situation).
The EAD allows you to work for any (or multiple) U.S. employers without requiring the employer to file an H-1B petition (or other work visa petition) on your behalf. Remember, once you have a new employment offer, you might qualify for “porting” under AC21 (refer to the AC21 explanation above).
Any time a foreign worker loses a job, his or her immigration status in the U.S. could be in jeopardy. It is HIGHLY recommended that the foreign worker consult an experienced immigration attorney to avoid serious immigration penalties.