Losing your job just when you were close to being approved for a U.S. green card (lawful permanent residence) can be a shock. Unfortunately, there is nothing to stop an employer from terminating the position offered to a foreign national, even while an employment-based green card application is still pending. This article outlines possibilities for such applicants to continue on the path to receiving a U.S. green card as well as how to maintain lawful status in the U.S. while waiting to resolve the situation.
One of the first questions asked by immigrant applicants who lose a job is, “How can I continue with my green card processing?” (We are assuming that you have already submitted Form I-485 to adjust status in the United States.)
The good news is that it may be possible to get a green card despite this setback. The bad news is that you are likely to have to start over from square one, by finding another employer who is willing to sponsor you for a green card. That new employer will need to go through the whole labor certification process on your behalf and then file a new I-140 petition for you, at which point you could file the I-485 application -- again.
You will be able to retain your previous priority date for the purposes of your new I-140 petition. For example, if your previous I-485 application was based upon an I-140 with a priority date of December 1, 2013, 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, 2016 (or any other date in the future).
But there is an important subcategory of people who need not go back to square one. If your I-485 application (based on your original job) has been pending for longer than 180 days, and you are able to find a job with another employer that's similar to the position described in your previous I-140, you will be able to 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 I-140 petition) to work in a position that is similar to the position in the previous I-140 petition. These 180 days are counted from the receipt date of your I-485 application. For example, if the receipt date for your I-485 application is January 1, 2016, then you can use AC21 as a basis to change employers any time after June 30, 2016.
This change in jobs is referred to as “porting.” Porting is very simple, and foreign workers port to different employers every single day. There are no prescribed procedures for porting under AC21. Typically, immigration attorneys will send a letter to U.S. Citizenship and Immigration Services (USCIS) informing it of the change in employer and confirming that the foreign worker is eligible for porting under AC21.
USCIS will continue to process the I-485 application. There should be no interruption in the process due to porting.
For more on this, see How to Transfer an H-1B to a New Job.
Another major concern for foreign nationals is how to maintain lawful status in the U.S. after a job loss. 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 status until USCIS reviews your case (calls you in for an interview) and denies the I-485 application.
At the time you filed your I-485 application, you should have also filed for Advance Parole (AP) (on Form I-131) and for Employment Authorization (EAD) (on Form I-765). If you did not file these forms, you must file these applications as soon as possible.
Your AP will allow you to travel abroad while you await a decision on your I-485 (although this is not recommended until you have sorted out your employment situation). Additionally, the EAD will allow you to work for any (or multiple) U.S. employers without requiring the employer to file an H-1B petition on your behalf. Remember, once you have a new employment offer, you may qualify for “porting” under AC21 (please refer to the AC21 explanation above).
See Maintaining Legal H-1B Status While Waiting for a Green Card for more detail.
Although losing your job can have serious consequences for your immigration status, U.S. law, and in particular AC21, provides several avenues for maintaining your status and continuing with your green card processing. However, the complexities of these laws may make it difficult for you to take advantage of their provisions. It is highly recommended that you consult with an immigration attorney about your options.