Changing employers while the adjustment of status application is pending

UNDER the American Competitiveness in the Twenty-First Century Act (AC21), an applicant for adjustment of status can change his or her employer or job without the employer filing a new immigrant petition for the applicant if the applicant’s application for adjustment of status has been pending for one hundred eighty (180) days.

On March 18, 2016, the US Citizenship and Immigration Services (USCIS) issued new guidelines on how the applicant whose application for adjustment of status has been pending for one hundred eighty (180) days can change his or her employer.

Even though the US Employer is not required to file a new petition for the applicant, the US Employer and the applicant must still submit a letter with the USCIS confirming that the US Employer is taking over the immigrant petition filed by the previous employer; agrees to pay the prevailing wage; and that the position offered by the new employer is the same or similar to the position described in the immigrant petition filed by the previous employer.

The USCIS will consider the totality of circumstances in determining whether or not the position offered by the new employer is the same or similar to the position offered by the previous employer as described in the immigrant petition.  In looking at the two positions, the USCIS may consider the following types of evidence: (1)  the job duties of both positions; (2) the skills, expertise, education, training, licenses, or certifications, specifically required to perform both jobs; (3) wages offered for the two jobs; (4) and any other material and credible evidence relevant in the determination.

An exception to the requirement that the new position must be the same or similar to old position of the applicant is if in the new position, the applicant will be primarily responsible in managing the same or similar function of his or her old job.  An example for this situation is a nurse who has been promoted to that of a nurse supervisor who manages several other nurses in his or her department.  Here the applicant can still accept this new position even if it is not the same or similar position to that of his or her old job.

With the retrogression of the visa numbers under the third preference employment based category, applicants for adjustment of status must take note of this new memorandum issued by the USCIS in order for them to be able to properly change employers while their adjustment of status applications are still pending.

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Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV), a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; [email protected]. The CTV Attorneys will be at Max’s Restaurant in Vallejo on October 19, 2009 from 5pm to 7pm to hold a FREE legal clinic.