Question: My present employer has filed for a green card for me. The I-140 is currently pending. I want to join another employer. May I transfer my green card and continue it with the new employer?
Answer: It depends. If the I-485 is also filed and has been pending, you may start working for another employer at the same or similar position, if 180 days have elapsed. If the I-485 has not been filed, or if you are still at the labor certification stage, you may not be able to “transfer” the green card petition.
The reason why you cannot change your employer while I-140 is pending is because the green card is employer dependent, not employee dependent. What this means is that the employer is the petitioner who is requesting the Department of Labor (DOL) and the USCIS to allow it to employ a foreign worker because it cannot find another employee with suitable qualifications to fill its employment vacancy. Thus, when you decide to leave your employer, the employer is required to notify CIS that you have left its employment and it must withdraw its pending petition.
However, you need to take into consideration the different steps of this process. The first step is filing for a labor certification with the Department of Labor. At this stage, the employer requests the DOL to certify that there is a shortage of equally qualified U.S. workers, so the employer may petition the CIS for permission to employ you on a permanent basis. DOL generally requires an employer to advertise its job opening in a suitable medium for a period of time. The employer is required to interview qualified candidates and if it finds another candidate equally or better qualified to fill its position, it is required to hire that candidate. When it fails to locate another equally or more suited to its position, the DOL will certify that your employer may sponsor you for permanent residence. This step is employer dependent, and if you leave your employment at this step, your petition will end.
The second step is when the employer, after obtaining labor certification, petitions the CIS on Form I-140 for your permanent residency. Again, the basis for an employer to sponsor you for permanent residence is the fact the employer has a permanent opening for a specific employment position that your qualifications fit. If you were to quit your employment while the Form I-140 was pending, it would be a clear indication to CIS that you, in fact, have no desire to work for this employer on a long-term basis. Thus, your petition will end.
The third step occurs when your priority date becomes current and you qualify to file for an adjustment petition. Under current laws, if you have an adjustment application pending for over 180 days, you may start employment with another employer and still continue with the green card. When you file an adjustment application, it basically notifies the CIS that you are already in the U.S. on a non-immigrant visa and allows you to adjust status from a non-immigrant to an immigrant status without having to leave the U.S. Please keep in mind that while you are able to “port” the green card to a new employer, the filing of an adjustment application does not grant you the right to work. To work, you will need to file for an H1 or other work visa or a work permit.