One of the frustrating aspects of the U.S. immigration process is that you may get stuck in an unsatisfying job until the long process is complete. Transferring jobs may delay approval of your green card. In some cases, you may need to start from the beginning or redo steps in the process.

When Is Portability Allowed?

Portability refers to situations in which the employee retains his or her priority date upon switching jobs. Portability is not permitted during the initial phases of the multi-step employment immigration process. This makes sense because, at the very least, your sponsor’s business details, location and recruitment process would change, and would need to be part of a new PERM (Program Electronic Review Management) labor certification application.

Once United States Citizenship and Immigration Services (USCIS) approves the initial employer’s application, however, you may retain your priority date while your new employer files a new application. Although the process requires more work, you do not give up your priority date for adjusting status.

New Rules for Job Portability for EB-1, EB-2 and EB-3 Workers

USCIS has proposed a new rule — titled the Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers — to ease portability restrictions, including:

1.) Enabling U.S. employers to hire foreign worker beneficiaries of approved employment visa petitions;

2.) Allowing beneficiaries to accept promotions, transfer jobs in the same company, move to a different employer and otherwise pursue other employment opportunities;

3.) Limiting the grounds for automatic petition approval revocation, and thus improve job portability;

4.) Clarifying when individuals may retain their adjustment of status priority dates;

5.) Permitting certain high-skilled workers currently under E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for one year work authorization under certain conditions; and

6.) Establishing a grace period that allows certain high-skilled nonimmigrant workers to pursue new employment and extension of status when their employment ends.

Upgrading Employment Preference Categories

During the long immigration process, you may have obtained a graduate degree or gained impressive new skills and training that qualify you for a promotion. The promotion should also come with a salary increase, all which must be reflected in a new application for a different position.

However, you may retain your priority date if the PERM application has already been approved. Even if you cannot keep your priority date, you may consider whether filing under EB2 is nonetheless faster than waiting on your EB3 approval. USCIS’s proposed portability rules should encourage upgrading filing preferences when appropriate.

Find out more about your portability options during the employment based immigration process. Contact our Concierge to schedule a consultation with a qualified attorney today.

*The content and materials available via Ask Ellis are for informational purposes only and do not constitute legal advice.