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My employer filed an EB2 NIW I-140 petition for me, which was approved. I have changed jobs since. Is my petition still valid?

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The EB2 NIW is known as a “fast-track” pathway to a green card because it allows an applicant to “self-petition” for a green card, does not require a U.S. job offer, and exempts the requirement for petitioners to engage in the “labor certification” process which can take several years to get approved.

It is important to note that the EB2 NIW can either be filed by an individual as a self-petition, or be filed by a U.S. company petitioner that intends to hire the individual after the green card is approved. There is still a benefit for the U.S. company petitioner to apply for an NIW instead of engaging in the traditional pathway of employer sponsorship, because NIW-applicable petitions do not have to go through the time-consuming process of labor certification, which requires US employers to first “test the US labor market” to see if a minimally qualified US worker can fill the position. If there is a qualified US applicant, the US employer cannot proceed with sponsoring the foreign national.

In either case, when the I-140 petition is approved, the job offer requirement is waived. Does that mean that the applicant can change their intended employer or start working in a different field, and still be approved for a green card based on the original I-140 approval?

Not always. Regardless of who filed the I-140 petition, the primary issue is whether the beneficiary still intends to be “performing the activity or work which was the basis of the national interest waiver.

  • If the national interest waiver was based on the beneficiary’s work for a particular employer, a petition filed by the employer will no longer be valid if the employer will not hire the beneficiary.
  • If the basis of the national interest waiver was a beneficiary’s contributions to an industry which can be utilized by another employer, the petition may remain valid.

For example, let’s say a company filed an I-140 NIW petition for a beneficiary who has an exceptional ability in the industrial molding process. The petition was approved, but the original company that filed the petition has closed down its business. Subsequently, the beneficiary was hired by a competitor in the same industry to work in the field of industrial molding. There may be an argument that the I-140 NIW approval is still valid if the national interest waiver was granted based on the beneficiary’s contribution to the industry which can be utilized by another employer.  But if the national interest waiver was granted based on the beneficiary’s contributions to the particular company (the original employer) that filed the petition, the I-140 NIW approval would no longer be valid to qualify him for a green card.

This is a complex area of the law, so we highly recommend consulting the advice of an experienced immigration lawyer to help you determine the way forward in cases like this.

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