Question:
My question is: Can a person switch the job once (s)he gets his Immigration
Stamp? If not then what is the period of time for changing the job after
immigration stamp. Note that he is currently on H1B and waiting for
Immigration Interview.
Answer:
The official rule (which IMHO has not changed with the passage of AC21)
is that you must not have any preconceived intention to leave the job
when you get your Green Card. (Your friend clearly does :-( ) In
general, working for the company for one year after getting the GC is
normally considered sufficient.
If he can't stand the thought of a whole other year at the company,
then he should withdraw his consular processing and switch to
adjustment of status within the US. 180 days after his AOS is filed, he
can take advantage of AC21 and switch jobs, providing he remains in the
same field. Of course, the downside is that it'll be an extra year or
more before he actually gets his GC.
I doubt such a "rule" would be enforceable after AC21 for people getting
greencard thru the lengthy I-485 process. It makes no sense that
someone in the I-485 for more than 180 can change job while still
getting the greencard, while someone with the greencard can't change
jobs after waiting for so long on the I-485. A federal judge would
certainly dismiss such case.
I wouldn't speak so soon. We already have an analogous situation with
marriage: if you divorce three years and six months into a marriage, do
you get to keep your Green Card? Not if the processing took between 18
months and two years. If it was more than two years, you are home and
dry because you got a full GC; but if you get your GC even one day
before your second wedding anniversary, it's conditional on you staying
married for another full two years (with a few exceptions for domestic
violence etc.)
So although I agree the situation is iniquitous, we already have a
close analogue enshrined and clear in law. Could it survive a challenge
under the 14th Amendment? Maybe not, but nobody (to my knowledge) has
ever tried.
BUT WHAT ABOUT THIS?
Reference : http://www.haledorr.com/publications/immig/2000_10_ImmAdv.html
Employer-Sponsored Green Card Cases Now Portable if INS Delays Adjudication
In an unprecedented change to the underlying philosophy of
employer-sponsored immigration, the new law allows workers who file for
adjustment of status and whose cases are pending for 180 days or more to
change jobs or employers without affecting the validity of the pending
green card application. Since 1977, both INS and Department of Labor (DOL)
rules have mandated that a worker remain with an employer in the same job
for a reasonable time after receiving the green card in employer-sponsored
cases. The new law merely requires that the new job be in "the same or a
similar occupational classification" as the job described in the original
filing.
http://www.haledorr.com/publications/immig/2000_10_ImmAdv.html
"the new law allows workers who file for adjustment of
status and whose cases are pending for 180 days or more to
change jobs or employers.."
And what about Consular Processing?
Packet3/4 is no less lengthy than I-485. Is the new law applicable for
CP as well?
http://www.haledorr.com/publications/immig/2000_10_ImmAdv.html
"the new law allows workers who file for adjustment of status and whose
cases are pending for 180 days or more to change jobs or employers.."
And what about Consular Processing? Packet3/4 is no less lengthy than I-
485. Is the new law applicable to CP?
Packet 3/4 is MUCH less lengthy than I-485 (3-6 months for consular
processing, 15-18 months for I-485 at the moment I think.) But anyway,
no, it only applies to adjustment of status.
I've a question. Though my Green Card is in the process but can I file an
H1B with some other company??? If so then will there be any impact of thi H1
on my current GC processing? Note that my GC is in Consular Procssing now.
Secondly, I have several cases where people did leave their job after
getting GC. one of them did the same day he got his GC. And its been 5 years
and INS never gave him any trouble what so ever...
Thirdly, my current company had an agreement to stay with them for 2 years
which I have already did and now its 2 1/2 year and I'm still with them. By
agreement I can leave any time now. will this effect on GC in any way?
Hope to hear back soon and again I appreciate for all the reply. Specially,
from Alistair Bell.
The trouble usually comes when you naturalize. If you don't do anything
to come to INS's attention, then you probably won't get noticed. But if
you try to naturalize, INS will look hard at your record: the person
who left his job the same day he got his Green Card may well be
deported when INS notices, but INS probably won't notice unless he
tries to naturalize. (If someone did the same today, i.e. after the
passage of AC21, they would have a better chance of surviving, but
still they could face deportation proceedings.)
Your agreement with your current employer has NOTHING to do with your
obligations to INS.
Let me explain how the Green Card system is supposed to work. What is
supposed to happen is that an employer identifies a vacancy that he
cannot fill with Americans. He therefore looks abroad to find someone
qualified, and the person gets a Green Card and then starts working for
that employer. The system is set up so that you are supposed to _start_
working for your sponsoring employer after you receive your GC.
Because of the enormous processing delays at INS, however, this system
has been steadily eroded over the years, with the result that 90% or
more of those who receive employment-based Green Cards are already
working for the sponsoring employers on H-1 or L-1 visas. Nevertheless,
the principle is that the employer is recruiting for a vacancy. An
employer wouldn't be happy if he spent thousands of dollars to recruit
someone and they left on their first day, and INS regard it as
immigration fraud.
AC21 muddies the waters heavily by recognising the way the system
operates now, and allows those in adjustment-of-status proceedings to
leave the sponsoring employer without promising to return. HOWEVER,
this does not apply to consular processing, and it does not apply to
those who have already received their Green Cards. Now that AC21 has
been enacted, it is, I agree, less likely that those who leave their
employers the day after getting Green Cards will be deported once
discovered, but it _is_ still immigration fraud. (Similarly, you can
legitimately marry a foreigner and get them into the US the day before
you receive your Green Card, but if you do the same the day after you
receive it, they'll have to wait for five years to enter the US.)
And for those in Consular Processing, you will be asked at your
interview whether you are still working/planning to work for your
sponsoring employer. If you have left your job and say yes, you are
committing immigration fraud; if you say no, you will not get your GC.
Remember that a Green Card is a privilege, not a right. If you are
desperate to leave your current employer, then cancel your Consular
Processing, file I-485, and wait six months. Or cancel your whole Green
Card process, transfer your H-1 to your new employer, and start again.
INS couldn't care less about the applicant's employment history during
the naturalization process. All they care are the amount of the time
the GC holder has lived in this country, and whether he/she has criminal
records.
INS also cares about whether the GC was obtained fraudulently. If the
applicant quit the job the day after receiving the GC, this can be
evidence of fraud.
