Many immigrants rely on an employer’s support in petitioning for their work visa and green card. But what happens if your employer withdraws their support during the application process? It can lead to a lot of anxiety and uncertainty. Luckily, there are things you can do to protect your immigration status.
Comprehending the Green Card Process
To understand what to do if your employer withdraws support, you must first understand the basic green card process. It starts with your employer submitting a Labor Certification application on your behalf. This document tells the Department of Labor that no qualified U.S. workers can fill the position and that hiring you will not adversely affect the earnings or working conditions of U.S. workers.
If the Labor Certification is approved, your employer will file an Immigrant Petition for Alien Worker (Form I-140 petition), proving you have the skills needed for the job. If the I-140 is approved, you can submit your Application to Register Permanent Residence or Adjust Status (Form I-485 application). Approval of the I-485 grants you lawful permanent resident status, also known as getting your green card.
The whole process can last between 1 and 2 years or longer. You remain dependent on your employer’s support at every stage. But what if they change their mind and withdraw their support by refusing to cooperate further or by withdrawing your approved I-140? Let’s take a look at a few possible scenarios:
If the Labor Certification Is Still Pending
If your employer withdraws support while your Labor Certification is still under review by the Department of Labor, the application will be denied or revoked. Unfortunately, you will not receive any benefits from a Labor Certification application that was ultimately withdrawn.
However, if you are still within your period of authorized stay in H-1B status, you can remain in the U.S. and seek new employment. You would then have to start the green card process over from the beginning with your new employer.
If the Labor Certification Is Approved but I-140 Not Yet Filed
Similarly, if your employer withdraws support after your Labor Certification is approved but before they file Form I-140 on your behalf, you will not receive any benefits from the approved Labor Certification. You cannot use an approved Labor Certification with a different employer.
Again, if you have time remaining in your authorized stay in the U.S., you may look for a new employer and have them restart the green card process for you. Make sure any period of unemployment between jobs does not violate the terms of your visa.
If Form I-140 Has Been Filed but Not Approved
If your employer has filed Form I-140 but withdraws it before it is approved, again, you will not receive any benefits from this process. Without an approved I-140, you cannot file your green card application or receive other benefits that come with an approved I-140.
If Form I-140 Gets Approved but Then Withdrawn Within 180 Days
Now, let’s say your employer can successfully get your Form I-140 petition approved but then has a change of heart and withdraws it within 180 days of approval. The good news here is that you will lock in your priority date as of the I-140 approval date.
Your priority date establishes your place in line to apply for permanent residence. With an established priority date, you can retain this earlier spot in line even if your green card process is restarted with a new employer later.
Even if the approved Form I-140 gets withdrawn within 180 days, you can still use it to extend your H-1B status beyond the 6-year maximum limit. Approved I-140 petitions, even if withdrawn within 180 days, make H-1B holders eligible for extensions beyond 6 years. Extensions can be granted in 1-year increments until a green card is approved.
Additionally, as long as the approved I-140 petition remains valid for at least 180 days, your spouse can qualify for H-4 dependent EAD (employment authorization). They can then apply for a work permit to legally hold a job while you wait for your green card.
What If Form I-140 Is Withdrawn After 180 Days?
In this scenario, because your approved Form I-140 was on file with immigration authorities for at least 180 days before it was withdrawn, it essentially gets converted to an “indefinitely approved” status. This means you can continue using the original approved I-140 petition for benefits such as:
- Getting H-1B extensions beyond 6 years
- Enabling your spouse to qualify for an H-4 EAD
- Retaining your priority date
Additionally, you gain increased job portability through INA 204(j) portability provisions. These provisions allow you to switch employers or jobs more freely without endangering your pending green card application.
Specifically, INA 204(j) allows you to change jobs or employers as long as your new job is in a “same or similar” occupational classification as the job tied to your approved Form I-140 petition. This provides more flexibility to maintain status while you search for a new employer to sponsor your green card process. Make sure any gaps in employment do not violate your visa terms.
If Form I-485 Is Already Filed but Not Approved
In some cases, an employer may withdraw support even further along in the process after you have already filed your Form I-485 green card application.
If the I-485 has been pending less than 180 days upon job loss, unfortunately, your green card application will be denied altogether. You will need to find a new employer and restart the green card process from the beginning.
However, if you can quickly find new work in the same or a similar occupational role, and it has been at least 180 days since filing Form I-485, you may be able to salvage your green card application and continue the process with your new employer. Make sure there are no gaps violating your visa conditions.
Rely on Pride Immigration for Green Card Assistance If Your Employer Withdraws Support
Losing your employer’s support during an ongoing green card process can happen unexpectedly and through no fault of your own. The stress of unexpectedly having to find a new employer and restart the lengthy green card process all over again can be overwhelming.
If you require legal assistance with appeals or analyzing your options when faced with issues regarding an employer withdrawing support, Pride Immigration is here to help. Contact us today at (703) 594-4040 or online to schedule your consultation.
Beeraj Patel, Esq.
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