U.S. Citizenship and Immigration Services (USCIS) failed to reconcile their regulations with a statute that allows foreign workers to change jobs while waiting for a green card decision, per a D.C. federal judge. As such, the judge ordered a case be reopened and reconsidered.
The case involves an Indian national who changed employers while awaiting a green card decision. Per the judge, USCIS should have notified the individual when they decided the application filed on their behalf was deficient. By the time USCIS requested additional evidence, the new employer hired the individual under the portable position policy that allows petitioners who wait beyond 180 days to change jobs without threatening their employment status. The request for more information went to the former employer, who did not respond. As such, the application for adjustment of status ended.
The judge states USCIS regulations aren’t clear in terms of job portability and change of status processing. Adjustments need to be made to ensure individuals waiting for a green card who change positions during their wait aren’t at risk of losing their green card plea due to lack of communication.
The judge’s ruling focuses on petitions from management-level EB-1C visa petitioners.
USCIS has been “adamant” that adding new employers to an awaiting change of status request is unnecessary. The new employer has no ability or responsibility to correct any outstanding issues with the original petition. And, depending on the individual, multiple companies could be added to the same petition if an individual again changes positions. None of the companies other than the original filing source can address any issue in the filing. Adding the individual to the filing there is, at minimum, a stopgap benefit to ensure cases are not dropped.
If you have questions about changing positions while awaiting green card status or any immigration-related issue, contact us at ILBSG. We are here to work with you to ensure you get the right advice.
