To the questions regarding EB-1b (OR) 换工作, be careful! Not always allow to change employer! Please see this poster:
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detailed information
文章来源: sunnnyyyyy 于 2005-10-10 06:27:59
Please refer to"http://ti.3law.com/faq/q25.htm"
Q-25: With a pending I-485, what will happen to my status if I leave my current job?
A: This is an extremely common question of critical importance for many. Unfortunately, there is no simple and apply-to-all answer to the above question and it is important that you consult with your attorney regarding your specific situation. The answer does depend on your specific situation and the correct answer can be elusive. It is highly recommended that you conduct an individual consultation with an attorney. If you are represented by a law firm or attorney for your I-485, attorneys advice for such issues is likely to be covered as part of the service.
The following information is given only as a general background.
In general, the answer first depends on which type of petition you have filed. For petitions based on a labor certification, EB-1B (Outstanding Researchers or Professors) and EB-1C, the answer further depends on the exact timing, intentions of the employer, and nature of the previous and the new employment. With exceptions (see below - The 180-day portability rule and FAQ Question 29), a change of employment could mean invalidation of the underlying labor certificate and/or termination of the related I-140, and if you are in I-485 stage, termination of I-485 and loss of a legal status.
As a related issue concerning attorney advice, please note that in labor certification, EB-1B or EB-1C, the attorney represents the employer (petitioner) rather than the employee (beneficiary). That is, the attorney primarily represents the interest of the employer instead of that of the foreign employee. This may affect how the attorney would answer the above question.
The 180-day portability rule:
The most notable exception that may allow a petitioner to change employer is based on a 180 day rule derived from AC21. According to the rule, an employment-based green card applicant who has a pending I-485 for 180 days or more will be allowed to change job or employer without affecting the validity of the pending I-140 or underlying ETA 750, as long as the new job is in the same or a similar occupational classification as the job in the original petition and ETA 750. For more information regarding this question, please see FAQ Question 29 (When does an I-485 application become “pending” in the context of AC21's 180 day rule?).
Independent petitioners in NIW or EB-1A:
Independent petitioners in NIW or EB-1A enjoy, in addition to the above 180 day rule, a much broader flexibility due to the different nature of their petitions. In general, an independent petitioner has a much better chance to be able to change job without affecting an ongoing I-485. In most cases, an independent petitioner's status will be unaffected during pending I-485, regardless of which employer you work for during the time, or even if employed at all. Indeed, it is not very common that a NIW or EB-1A petitioner fails to qualify for I-485 only as a result of his employment status after I-140 approval.
However, that does not mean that with NIW or EB-1A, you can do whatever you would like to once I-485 is filed. Although with NIW or EB-1A you do not need to stay with a specific employer (in fact, at least in theory, you do not need to be employed at all during the I-485 pending period), you do need to be able to prove, when necessary, that you have maintained the minimum qualifications as set forth in the original I-140 petition. This question may arise either in a Request For Evidence (RFE), which is becoming more common even in I-485's recently, or a possible final interview by CIS when you finally adjust your status to that of a permanent resident (happens at the end of I-485 pending). If CIS at the time of the RFE or interview believes that you no longer maintain the minimum qualifications set forth in the original petition (I-140), the I-485 may be rejected and you will be considered out of status unless you still have a valid H-1B status.
Whether you have maintained the minimum qualifications set forth in the original I-140 petition can be a complicated question. Naturally, the answer will depend quite substantially on how your I-140 petition was written and presented. In this sense, an I-140 can be unnecessarily restrictively written to cause trouble during I-485 stage. An experienced attorney will compose an I-140 petition not only for the sake of obtaining an I-140 approval but also with a foresight for the subsequent I-485. This is yet another reason why one should hire a competent attorney in preparing the I-140 petition.
On the other hand, for an independent petitioner, facing a RFE or interview during I-485 generally means a concern about I-485 itself only. It is not as if your underlying I-140 is subject to a re-examination. An approved I-140 is not to be simply re-examined and revoked. The government can revoke an approved I-140 only if there is clear reason to do so, and such clear reasons typically amount to a level of clear evidences of fraud committed by the petitioner.
Generally speaking, one should at least stay active in the field of proposed employment and be able to show intent to continue to do so in the future. In this connection, the definition of "the field of proposed employment" may become critical and is primarily determined by how the I-140 petition was written. Staying active in the field of proposed employment does not necessarily mean one needs to be hired during the entire period. It is a quite subjective test but one must still be cautious. For example, if a petitioner stays in the United States for a prolonged period of time after filing I-140 but unable to find employment in the proposed field, it tends to cast a serious shadow on the qualifications set forth in the original I-140 petition.
Note that in the case of NIW or EB-1A, employment status during I-485 pending itself is merely used as a part of the evidence for the petitioner's maintaining of the projected minimum qualifications, rather than an outright termination (or invalidation) as in the case of other classifications such as EB-1B or those involving labor certification. In other words, NIW or EB-1A does not inherently require employment as part of the minimum qualifications. That is the very reason why these two classifications are independent petitions.