Applying AOS with Employer B while working for Employer A

[idliman]

This was a reply to a question / post. The OP reached out to me and asked me to delete it for confidentiality. I am posting this separately for benefit of others in similar situation.

I see more of these situations where the theme is "I am not working for the employer now, but I used an I-140 from that employer and had filed I-485 for a future job". My question to you is if you are the Adjudicating Officer (AO), and are reviewing a file that is similar to your situation, how will you make sure that the applicant has correct intent and is not a potential fraud case or is misrepresenting? You would first check if the applicant is working for that company now. If the applicant is not working for that company, You would send a NOID or a REF asking for evidence.


There is nothing in the law that says you cannot work for employer B, while filing I-485 using employer A's I-140. You just have to prove the intent and make USCIS understand that you will honor the contract in I-485 about whom you will work for after I-485 is approved.


See my earlier posts on this topic. You should work for the same employer whose I-140 you had used to get GC, once GC is approved.


Just because there are Grey areas in law, does not mean that one could use everything. All of you in backlog have struggled for these many years, just play it safe for a little while. You are going to get GC within 6 months or so. After GC stay with your employer for another 6 months.

[LRT_INDIA]

Thanks for your post.

is that OK to work with new employer until I-485 with previous approved? I am in the same boat, my previous employer filed EB-2 to EB-3 downgrade along with I-485, I-765 and I-131. My previous employer support for that job position and i am willing to join back to them after my 485 approved.

am i doing the right thing? any suggestions from the experts.

Thanks

[idliman]

Thanks for your post.

is that OK to work with new employer until I-485 with previous approved? I am in the same boat, my previous employer filed EB-2 to EB-3 downgrade along with I-485, I-765 and I-131. My previous employer support for that job position and i am willing to join back to them after my 485 approved.

am i doing the right thing? any suggestions from the experts.

Thanks

It is perfectly acceptable for one to work for employer B while employer A had filed for AOS. You can also use the section 104(c) of AC21 to request for H1B extension. Here's what USCIS PM (Vol 7, Part A, Chapter 6) says:

The officer should determine that the applicant is either employed by the petitioner or the job offer still exists, that the employer continues to have the financial means to employ the applicant. In addition, the officer should determine that the employer continues to be a viable business, including possessing a valid business license in the county, state or jurisdiction within which it is operating.

As this situation is not very common, the officer may send another RFE or accept the presented evidance as it is. I believe you can also use INA 204(j) to port to a job of "same or a similar occupational classification" after 180 days.

You need to make sure that you maintain good relations with employer A for atleast 180 days. After that you can do a AC21 portability. However, whatever happens you have to work with the employer who finally sponsors your I-485 Supp J, the moment you get GC (the next day). That is the basis / contract for you getting a GC.

Also note that the moment CPO status is issued you are a LPR. You are effectively a LPR on the day GC is approved eventhough you still don't have the card with you. I would think that USCIS expects you to stop working for employer A and join employer B (the new GC job employer) immediately. Don't know the practicality of this or what will USCIS do if you still work for employer A for a week or two after GC was approved. The longer you stay with employer A, you are not honoring your contract for not getting GC. A potential way around may be to do an e-Verify or I-9 and justify to USCIS that you tried your best to join GC employer ASAP.

As far as N-400 is concerned it will ask for the last 5 years employment history. So you may start your history from the day you join employer B.

You may want to discuss with an attorney about what should you do once GC is approved. Do you stop working immediately with employer A? Because once GC is approved, you are no longer a non-immigrant and hence H1B with employer A expires.

So far everyone thinks that they don't care once they get GC. However, people still have an obligation to adhere to the basis for their GC.