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My employer is sponsoring me for a green card & I am concerned about being laid off or furloughed. If I get laid off or furloughed am I still eligible to get a green card?

By April 14, 2020March 29th, 2021COVID-19
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Covid-19 has changed the rules for travel, engagement and employment. Many companies have started to reduce wages and put staff on leave, and some companies have terminated employees.

What is the impact on my pending green card case if I have been furloughed?

If your company is in the process of sponsoring you for an employment-based green card and you have been placed on an unpaid leave of absence, your green card case can continue as long as your employer plans to rehire you under the terms and conditions outlined in the immigrant petition once the green card is granted. This is because employment based green card applications are prospective, meaning they are filed for the position that the employee will hold once their green card is granted. For employment based green cards granted through the PERM process, any location changes or significant changes to the job duties or wage may impact the viability of the green card application. However, if you have a valid I-140 and your adjustment of status application has been pending for 180 days or more, you may be able to “port” to a similar job at the same employer using 204(j) portability, which is described in more detail below.

What is the impact on my green card case if I have been terminated?

If you have been terminated and your employer does not plan to rehire you in the future, your ability to continue with the green card case will depend on what stage of the process you are in. If your I-140 is approved and your I-485 adjustment of status application has been pending for 180 days or more, you may still be able to obtain a green card if you find a new position in the same or a similar occupational classification as the original job. The ability to change to a new job and/or employer is based on section 204(j) which allows for portability in certain circumstances when the adjustment of status application has been pending for 180 days or more.

What jobs are considered the same or similar for purposes of 204(j) portability?

USCIS uses the plain meaning of the words “same” or “similar” to assess the job, so the “same” job would be one that is identical to the prior job and a “similar” job is one that shares the same qualities or has a strong resemblance to the prior job. In order to determine whether the new job is in the same or a similar classification, the government will look at evidence such as the required job duties, skills, education, experience, training, wages offered, and licenses or certifications required. They will also consider the descriptions in the Department of Labor’s occupational classifications for various roles. You may also submit any other available evidence, for example, industry reports or evidence from trade or professional organizations to demonstrate the similarities between the jobs. The new job also does not have to be in the same city or state as your prior job.

Once you find the new job, you can file the I-485 Supplement J with proof that you have a new permanent, full-time job offer and that the job is in the same or a similar classification as the original job.

You can find key immigration information related to the Corona Virus below.

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