I-140 Portability: H-1B Termination/Transfer

New I-140 Portability Series

Today we would like to launch a series of articles on an issue that arises in our office every week: What to do where an H-1B employee of company A has an approved I-140 from company A, filed the Adjustment of Status green card application two months ago, and is either being terminated in a month or wishes to transfer to another employer. What happens to the approved I-140 and the AOS?

This has become a particularly pertinent topic in both the H-1B and the I-140 arenas as we have discovered that at least one major immigration law firm only represents the employer and explicitly does not represent the individual employee. That means that the law firm does not consider itself responsible for tracking down individual employees who have “ported” either in H-1B or the I-140 context. Sometimes there are RFEs that are issued to the petitioning employer concerning the original I-140 that involve the employee who has ported to company B and the employee is never notified and does not respond and the case is denied without the ex-employee ever finding out until it is very late or too late in the game.

We have become sufficiently concerned about the number of inquiries about this issue that we believe that we need to make the effort to unravel some of the complexities of the I-140 portability issue for both the petitioning employer and the employee.

Part 1: What is the basic rule and what can the employee do if terminated or wishing to transfer to another employer before the 180 days for the I-485 have elapsed?

The rule is reasonably clear and turns on whether the I-485 has been pending for at least 180 days.

Where the labor certification PERM has been approved, the I-140 petition is approved and the I-485 application has been pending for 180 days or longer, there is nothing that employer A can do to stop the new employer from using the underlying labor certification and I-140 approval.  At this point, the foreign worker retains her right to the labor certification and I-140 petition and the new employer need not file either.  The new employer need only explain how the new job is “the same, or substantially similar” to the job described in the labor certification application.  The new job does not need to be in the same city, the same state, or at the same salary as the job listed in the underlying labor certification so long as the new job is the same, or substantially similar to the old  job.

What happens if the I-140 is approved and the I-485 has not been pending for at least 180 days. Unfortunately, without the I-485 pending for at least 180 days, employer B will have to start the labor certification PERM and I-140 all over again. The only benefit that accompanies the foreign national to the new job with Employer B is eligibility to use the priority date from the earlier approved I-140 petition with Employee A for a new I-140 petition filed by a different employer based on a different labor certification, or no labor certification at all. In fact, there is no restriction in using a priority date from a first, second, or third preference category petition in a new first, second, or third category petition.  That is to say that a foreign national can use a past third preference category I-140 priority date for a new I-140 petition in the second, or first preference categories, or any other combination.  So while the new employer may have to file a new labor certification and I-140 petition, in many cases the employee can keep his place in queue.  Why is this important?  For some foreign nationals, the queue for a permanent visa for professional jobs is almost ten years.  A labor certification approved five or six years ago by an earlier employer is very useful in cutting years off of the foreign worker’s wait after a new employer files a new labor certification. Clearly it is in the employee’s interest to negotiate with the employer to not withdraw the I-140 before approval.

What steps can the employee take?

In the case of a terminated employee, we advise our clients to first communicate with the employer or the employer’s law firm to find out, if possible, if the employer intends to withdraw the I-140. If the employer indicates that it will not be withdrawing the I-140, or at least not until after approval, the employee has the assurance of the earlier priority date which may be very important if there is a queue in the particular preference category for the individual’s country, such as India or China.

If the employer withdraws the I-140 prior to approval, USCIS will certainly deny the pending I-485 immediately.  The employee should try to use whatever leverage she can with the employer. For example, she can offer to forfeit certain termination benefits in exchange for the employer A waiting to withdraw until after approval.

If all else fails, we are now advising our employee and employer clients that employers who withdraw I-140 petitions prior to approval without cause face potential liability. Even in at-will employment states, employers have a duty not to take certain types of action against current or past employees without good reason.  Several civil employment law cases litigated in the state and federal courts indicate that employers may face liability for breach of contract, and even fraud for taking certain immigration-related actions against employees without good reason.  Employers, for example, are required to inform USCIS upon an H-1B worker’s termination of employment.  But the employer is not required to notify USCIS upon the termination of employment of an I-140 beneficiary. If an employer requests that USCIS withdraw an I-140 petition for a worker simply to punish him, the employer risks an employment suit in state, or federal court.

In subsequence Distillery articles we will be discussing how lawsuits against employers are being resolved, how the I-140 portability rules interplay with the AC21 H-1B rules, and how the employer and employee can better understand and manage the enormous stakes that are involved in this issue for the employee.