Immigration Law Questions? Ask an Immigration Lawyer.
Dear attorneys, I have been working as a tenured track assistant professor at a college for 5 years, the school petitioned my EB2 application and my I485 is pending (PD is Feb. 21， 2009）. But since Aug. 15, 2013, my position was changed to a non tenure track assistant professor and I signed a release agreement with school (they will terminate my job on Aug 25,2015). They said school would withdraw the petition if required by laws:" We make no commitment to you that we will continue the green card process on your behalf as your employment will be terminated effective May 25, 2015. If required by law or regulation, we will withdraw the underlying employer petition associated with the green card at a time deemed appropriate by the University. "
Do any laws require the school to withdraw the petition in this case? Does this change will affect my green card? If it does, how should I do to keep the application valid? Thank you.
Hello,my name is Judith. Thank you for this opportunity to answer your questions.
Here are direct answers to your question:
Do any laws require the school to withdraw the petition in this case?
There is no law that requires you to employer to withdraw the petition. They may leave the petition in place.
Does this change will affect my green card?
Yes. When your priority date is current you will need an offer of employment for a same or similar occupational job classification which you do not have as you are no longer a tenured professor and your new job is as an assistant professor.
If it does, how should I do to keep the application valid?
The best way for you to keep your adjustment of status on track is to find a tenured track professorship with a new university. You may port your approved I-140 to a new employer offering you the same or similar occupational classification since your I-140 is approved and has been pending over 180 days.
That is the best and only way to keep your adjustment alive. You do not have to work for that new employer until your adjustment is approved. Therefore, you can begin your job search and attempt to start the new tenured track job while the adjustment is pending or upon approval.
I hope this has answered your questions. You can ask me further follow-ups. Be sure to address the follow-up to JUDITH since a previous expert has put out an Information request to you. I saw you had requested me and wanted to provide you with an answer.
Thank you so much for your response. I still have questions.
I will be working at same school for the next 2 years.In my application it does not say tenure track or non tenure track just assistant professor. I was on the track but have not tenured. If the laws do not require the school to withdraw the petition upon the change and the school keeps the petition in place, the immigration office will not know it. Do you think I need a new job offer in this case? Colleges hire new faculty only in August, I am afraid it is too late for me.
I do not understand this part "You do not have to work for that new employer until your adjustment is approved. Therefore, you can begin your job search and attempt to start the new tenured track job while the adjustment is pending or upon approval."
Thank you so much.
My question to you therefore is whether you know if the university used the special processing for the PERM. There is a streamlined recruitment process for those on a tenure track when obtaining the labor certification and they university may use the job posting for your position if they file within 18 months of that position announcement.
If they used this procedure, that could raise an issue with the university's decision to pull the I-140.
What is your current status? are you working on an H1B or EAD?
A labor cert and petition are PROSPECTIVE offers of employment. It is for a future job, you are not required to be in that job until you actually have your resident status.
The recruiting process was that they posted a job opening on website and news paper about Sept. 2007 and I came to job in Aug 2008. PERM was sent on Feb. 21, 2009. I am not sure it was counted for a special processing for PERM. Do you think the school would pull the I-140?
I am working on an EAD but my H1B was also approved in May 2013. Thanks.
I cannot predict what the school will do but you do have your H1B.
I would suggest you start to look around.
Even if this employer withdraws the petition you can port to a new employer in the same or similar occupational classification.
In one of their emails they said" We make no commitment to you that we will continue the green card process on your behalf as your employment will be terminated effective May 25, 2015. If required by law or regulation, we will withdraw the underlying employer petition associated with the green card at a time deemed appropriate by the University. " By my understanding there is no law requires school to withdraw the petition, right? If the school keeps silence my green card application will be fine,right?
What happens if the school withdraws the petition before I find another job? I guess I need to use H1B. In this case when another school supports my new application can I keep the same PD?
Because you have a pending I-485 you do not have to work until your priority date is current.
You may use your I-485 EAD, as well.
You do not need an H1B.
You can port to a new employer even if the employer withdraws the I-140 and use it to adjust status under the AC21 porting law if the adjustment of status has been pending 180 days and the I-140 was approved. You don't loose it if they withdraw. You have to port to a same or similar occupational classification.
If the school keeps silent you may be fine. An employer still will have to give you a job offer letter at the time your priority date is reached. So you will need to be working or have an offer of employment in a same or similar occupational classification at the time of adjustment.
"An employer still will have to give you a job offer letter at the time your priority date is reached." What is the letter for? Does immigration office ask this letter to every applicant or just randomly pick some? Thank you.
Cases that have been pending for years are generally targeted for the verification of offer of employment letter.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).