Cyrus D. Mehta and Jessica Paszko, July 13, 2024
“Portability underneath Part 204(j) of the Immigration and Nationality Act (INA) permits sure employment-based inexperienced card candidates to vary jobs or employers whereas their adjustment of standing (Type I-485) utility is pending. Portability turns into accessible as soon as the I-485 has been pending for no less than 180 days. It have to be exercised by submitting Complement J (Type I-485J), which confirms the brand new job supply and its compliance with the identical or related occupational classification as the unique job supply that was the premise of Type I-140. As soon as an applicant’s I-140 precedence date is present, there’s a race to file an I-485J earlier than the I-485 is permitted to make sure the brand new employment particulars are acknowledged and to keep away from any potential problems within the adjustment course of or later on the time of naturalization. International nationals with backlogged Type I-140 precedence dates are typically not envied by their counterparts whose precedence dates are present or about to grow to be present. Mockingly, the latter group might discover themselves resentful, wishing their non-current precedence date might afford them further time to safe a job supply when confronted with unemployment upon their I-140 precedence date changing into present.
We’ve beforehand addressed the dilemma of a inexperienced card being permitted previous to submitting the I-485J, in addition to the uncertainties confronted by overseas nationals terminated throughout the “Twilight Zone” with an I-485 pending for lower than 180 days. But, in exploring these points, we might have neglected a vital component of the I-485J: the employer’s willingness to endorse it. A laid-off employee with a distant precedence date needn’t concern these dilemmas or uncertainties, even when their adjustment has been pending for lower than 180 days. They’ll diligently pursue new alternatives for related employment, assuming their I-765 utility for an Employment Authorization Doc (EAD) has been permitted, after which request their new employer to execute an I-485J on their behalf. Nevertheless, navigating this course of will not be easy, significantly when addressing the usual screening query posed by employers to keep away from a charge of discrimination or bias: “Do you now, or will you sooner or later, require sponsorship for employment visa standing (e.g., H-1B visa standing, and so on.) to work legally for our firm in the US?”
Arguably, a overseas nationwide employed underneath a legitimate EAD doesn’t necessitate ‘sponsorship’ for a visa. But, the brand new employer should execute an I-485J on their behalf. Is an I-485J synonymous with sponsorship? Technically talking, most likely not, although the brand new employer needs to be apprised of this materials reality which raises the query of when it could be acceptable to boost this with the employer?
Answering the screening query within the unfavorable may be defended, as signing an I-485J doesn’t suggest the kind of ’employment visa’ sponsorship the query usually refers to. Whereas the necessity for an I-485J might not must be disclosed throughout preliminary screening, might withholding this info till after signing the supply letter be justified? Introducing the I-485J requirement throughout the interview course of, earlier than the supply letter is finalized, might doubtlessly complicate issues though the timing of such a disclosure needs to be decided on a case by case foundation. From the overseas nationwide’s perspective, it might be prudent to delay discussing the I-485J till after accepting the supply. Nevertheless, if the employer learns of this requirement earlier and withdraws the supply, might the overseas nationwide declare discrimination underneath INA 274B? Prevailing in such a declare is unlikely underneath these circumstances.
Within the eyes of immigration practitioners, and employers who’ve been by way of the PERM course of as soon as or a whole lot of instances, hiring a overseas nationwide with an permitted I-140 and pending I-485 is a hard-to-pass-by discount particularly if they’ve the perfect wanted expertise for the job. The brand new employer doesn’t want to start out the time consuming and dear PERM course of anew and will get all the advantage of hiring a overseas nationwide that has been vetted as certified for the job by each the Division of Labor and USCIS. Absolutely, it could be foolish for any employer to go on hiring a potential worker upon studying that only one easy type must be endorsed for the employer to take over an I-140 that one other firm spent important time and assets to acquire. Though that could be the inherent response of the employer accustomed to immigration visa sponsorship, alarm bells would possibly go off within the ears of the cautious employer that has by no means sponsored any overseas nationals. From the cautious employer’s perspective, a signature within the employer’s part on the I-485J might expose them to perjury. The I-485J accommodates one part that have to be signed by the applicant and one other part that have to be signed by the potential employer who has to explain the job title, duties, and the Commonplace Occupational Classification (SOC) code, which can be daunting for the employer to determine, and much more so in gentle of signing underneath penalty of perjury.
An employer’s unwillingness to attest to the contents of the I-485J underneath penalty of perjury will not be the one consideration. A fearless employer who has a tough time believing the federal government would trouble bringing perjury fees in opposition to him for one thing like this is able to gladly log off on an I-485J however for the shape’s request for info that’s essentially at odds with the employer’s enterprise practices. Certainly, an employer who solely presents employment-at-will or who by no means specifies job duties or job length in supply letters could also be hesitant to vary its longstanding apply and supply info within the I-485J it has by no means put in writing. The employer’s unwillingness to endorse an I-485J as a result of to take action would contradict its regular enterprise practices would additionally lower in opposition to a declare that the employer engaged in discrimination. However, would a discrimination declare fare any higher if the employer’s lengthy standing apply is to incorporate job duties and job length in its supply letters? From that employer’s perspective, regardless of its lengthy standing apply, denying a proposal of employment to a overseas nationwide in want of an I-485J just isn’t commensurate with discrimination as a result of a signature on the I-485J exposes it to perjury, a significant legal responsibility that its lengthy standing apply doesn’t even ponder.
The pre-2017 period previous to the requirement of I-485Js supplied a less complicated course of for adjustment candidates who sought job flexibility. Throughout that point, candidates have been typically solely required to reveal, if questioned throughout a naturalization interview, that they’d moved to a identical or related job. Nevertheless, this strategy launched uncertainty relating to whether or not candidates have been obligated to reveal modifications in employment. With the introduction of laws like 8 CFR § 240.25(a) a few years after the enactment of INA § 204(j), readability has been enhanced: candidates can now use Type I-485J to affirmatively reveal ongoing employment with the sponsoring employer or a brand new job in the identical or related occupation, after the applying has been pending for 180 days. Whereas not explicitly necessary underneath 8 CFR § 240.25(a), the directions on Type I-485J have successfully made it a requirement. Nevertheless, though there may be extra certainty with the I-485J, candidates might discover themselves penalized if the I-485J doesn’t get submitted earlier than the issuance of a inexperienced card. This creates a paradoxical scenario the place those that secured employment earlier than their I-485 approval might profit greater than those that didn’t, assuming that the employer just isn’t reluctant to signal its half the primary place after being confronted with an I-485J asking for job duties and an SOC code.”
