Individuals who get their green cards through employment sponsorship often ask us how long they must remain with that employer after their green card is issued. While the short answer is that there is no specific minimum period of time, there must be evidence that both the employer and employee intended on having the immigrant employee work in the sponsored position indefinitely at the time the green card was approved. Moving on to a new job too quickly after getting the green card may, in some cases, pose problems for the employee.
Intent to Offer a Real Future “Permanent” Position
In most cases, the employer promises to offer the sponsored employee a future position that is “permanent” and full-time once the green card is issued. Interestingly, despite the term “permanent,” the regulations do not prescribe any specific period of time that employee must remain in the position. Instead, the term is referred to the employer and employee’s intentions of staying in that position indefinitely. Meaning, the position does not have a set end-date (e.g., certain contract positions). The fact is that most employment in the U.S. is at-will employment, meaning that the employer can terminate an employee for any reason at all and at any time, even without cause, and that employees can likewise leave employment at any time for any reason. These labor laws extend equally to both U.S. workers and immigrant workers and our immigration laws do not mandate that a sponsored immigrant employee remain with the employer that sponsored their green card for any prescribed period of time after getting the green card.
Does This Mean That I Can Leave My Employer Right After Getting My Green Card?
It depends and the answer to this is very case specific. There must be evidence throughout the process that the employee truly intended on working for the employer in the sponsored position full-time upon getting the green card. While the law does not prescribe a set minimum amount of time that is necessary before leaving that employer, it is relevant to consider certain factors.
Ultimately, it must be clear that there was a good faith intent on the part of both the employer and employee to place the employee in the sponsored position with that employer for an indefinite period of time upon green card approval. But given that employment-based green card cases typically take many years and, in some cases, even decades, it is not uncommon for circumstances to change and for the employer-employee relationship to end at some point. In those cases where the employment relationship ended shortly after green card approval, USCIS may conduct a case-by-case analysis to determine if there is evidence of fraud in the process. USCIS has the authority to revoke a green card within 5 years of issuance if it concludes that the green card was approved in error or based on fraud.
What About the I-485J and Portability Rules?
An added twist to this analysis is the impact of job portability pursuant to INA Section 204(j), often referred to as I-485J. Given the length of time that it takes to get a green card through employment, Congress enacted Section 204(j) to allow some flexibility in accepting new employment once an employee has gotten to the tail-end of their green card process. Typically, once an individual’s I-485 application to adjust status has been pending for at least 180 days, they are able to accept new employment with the same employer, a new employer or even through self-employment, so long as the new position is in the “same or similar occupational classification” as the job offered in the underlying I-140 (sponsored position). Meaning, in some instances, our immigration laws actually allow an individual to change employers even before getting the green card. In these cases, however, it is important to carefully analyze the similarity between the two positions to ensure that they are sufficiently similar to argue portability.
The Impact on U.S. Citizenship
In most instances, USCIS will not discover that an individual left the employer that sponsored them until the individual affirmatively applies for U.S. citizenship through naturalization, typically at least five years after getting the green card. At the time of the naturalization interview, the USCIS officer carefully reviews the individual’s entire immigration history and considers whether the individual lawfully gained their green card through employment. Although issues related to leaving the employer too quickly are rare, they do occasionally occur and the applicant must be prepared to explain and provide evidence related to their good faith intent to work in the sponsored position indefinitely at the time of sponsorship and upon getting the green card. If USCIS concludes that the green card was obtained in error or based on fraud, they may deny the naturalization application and even refer the individual for removal proceedings.
Contact an attorney at Minsky, McCormick & Hallagan, P.C. if you have questions regarding your employment-based green card.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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