1. Adjudication of an I-140 petition depends more upon the company’s situation
A reader asks:
I work in an educational consulting management role at a startup. My PERM application was submitted in September 2023, but I have not received any update so far. I am anxiously waiting, but unfortunately, I was laid off by the company. The company is willing to keep me on the payroll for a short period, but not for long, and will help me complete the I-140 process. The company is currently facing difficulties, but it may recover in a few years, so they might be willing to file my I-485 at that time. The EB-2 process started 3 years ago, and I really want to retain my Priority Date (PD) at this final stage; otherwise, all previous efforts would be in vain.
My question is:
- What should I do now? If I leave the company now, will it affect the I-140 application?
- Previously, the company adjusted my salary to meet the Department of Labor’s requirement because the company’s profit were insufficient. If I leave before the I-140 is filed, will it affect the approval probability of I-140? The payroll duration will be short. If the PD becomes current in 3-4 years and the company is still willing to help me complete I-485, what should I do?
- I’ve heard that after getting a green card, one needs to work for the employer for more than six months. The company is reluctantly willing to file I-485 or process the immigration visa abroad but may not be willing to employ me for six months. What should I do in this situation?
Alan Lee Esq. answers,
Under the law, a company should not sponsor someone under an I-140 petition that it has no intention of hiring as a permanent employee at the time that permanent residence is approved. That being said, adjudication of an I-140 petition depends more upon the company’s financial state and whether the beneficiary meets the qualifications of the PERM labor certification. Questions having to do with leaving the company now have more relevance at the time of application for adjustment of status or immigrant visa processing overseas. At that point, questions may arise concerning your leaving the company and the bona fide character of the sponsorship. To your other question, a good idea is that the successful applicant for immigration based upon labor certification should remain with the company for six months. However, US immigration law is not a license for bondage, and so the time may be shorter to remain with the company if there is good reason for a short time of employment.
2. Questions may be asked at the I-485 adjudication regarding why you no longer work for company
A reader asks:
If the petition letter mentions many things I did for the company, but when the PD becomes current, I am no longer with the company or am unemployed, can I still use this I-140 to submit I-485, or process an immigrant visa abroad? Will it be questioned by the immigration officer?
Alan Lee Esq. answers,
I assume for purposes of your question that the I-140 petition has already been approved and that you are waiting for the priority date to become current. Only if the company has a bona fide intention to hire you at the end of the process under the same terms as stated in the labor certification application and/or immigrant visa petition should you use the I-140 petition approval to submit the I-485 or process for immigration visa overseas. Kindly note that questions may be asked at that time of final adjudication as to the reasons for which you are no longer working for the company and why the company would continue sponsoring you for the green card anyway.
3. I-485 may be strictly reviewed if you return to the company you left
A reader asks:
I left company A three years ago and switched to company B. When I was at company A, my I-140 had been approved and I was waiting in line to submit my I-485. Now, company B is helping me apply for a green card perm. The final materials are ready to be submitted and the PD is current. A contacted me and hoped that I could go back. If I go back to A, can I directly submit I-485? Or do I need to do a new perm? A’s I-140 should not be revoked.
Alan Lee Esq. answers,
If company A did not timely revoke the 1-140 petition and is indeed offering you the position again, you may be able to directly submit the 1-485 application without going through the PERM labor certification process once again. Please note that USCIS may take a harder look at your case as to whether it is a bona fide situation of an employer actually wanting you back or an employer just attempting to accommodate your desire to obtain permanent residence. The three-year period of time that you have been away from the company may be very concerning to an officer.
4. I-140 processing time is less than 350 days at two service centers
A reader asks:
I submitted an I-140 for EB-3 before, and I was obsessed with not applying for an accelerated application at my own expense. I have been waiting for 350 days without realizing it, and the status is still “case was received”. I would like to sincerely ask for some advice. Should I continue to wait and see if there will be an update soon, or should I give up the fantasy of self-funded PP?
Alan Lee Esq. answers,
According to the latest timelines of USCIS, the two service centers processing 1-140 petitions were doing so for 80% of their cases at 8 months for Nebraska and 5.5 for Texas. These dates are far below 350 days. If your case has not been adjudicated by this time, you may file an eRequest (https://egov.uscis.gov/c-requcstrlntro.do) or chat with EMMA (https ://www. uscis. gov/tools/meet-emma-our-virtual-assistant) to place a service request to inquire about the status of your case. You can also reach out telephonically to the USCIS Contact Center at 1-800-375-5283 to speak with a contact representative. Alternatively, the petitioner (not you) can submit an application for premium processing on form 1-907.