PERM - Labor Certification

Transcript: Leaving an Employer after Approval of Green Card

Hi everyone this is Rajiv S. Khanna for immigration.com the Law Offices of Rajiv S Khanna, P.C.

I have been trying to get to this email now for a few days and it just keeps getting postponed. But this was from one of our community members who has a bunch of questions about what happens after  you get your green card  if you have done your AC21, not done your AC21 what to do, not to do to make the process of naturalization eventually smoother.

Question number 1.  How long must one stay with their employer after getting a Green Card?

Now we do have a very detailed video on this. If you go to my blog (http://forums.immigration.com/forumdisplay.php?253-Rajiv-s-Blog) you will get a video that talks about how long must you stay. I am not going to repeat that information here.   That information has already been covered.

He also asks along with a response to this question please provide any exceptions that might exist

I will give a very small summary. Let’s take the situation where no AC21 is involved. All we have is an employee who is staying with the same employer who sponsored their green card and today they got their green card approval.  When can they leave safely without negatively affecting their naturalization? 

And the answer is it is difficult to say depends upon the circumstance. There is no six month magic rule that people often talk about. But the way it works is green card is given based upon the premise that the employee is taking the job on a permanent basis. Permanent does not mean forever. Permanent simply means indefinite basis. And what is important is at least in my view that the intention or the intent at the time of getting the green card approval must be indefinite. So if I have already started packing my bags before I got my approval and I move three days later there could be some question about it.  Although  in the age of AC21 this question, did you really  have the intention of working here permanently, which in real  words means indefinitely - it has become very diluted because of the AC21.  At least that’s the way I would see it. I doubt very much government should make an issue out of it as long as you know the two jobs that you’re doing the one that you go from and the one you go to are substantially similar positions.

I would make an AC21 type argument saying that I basically ported over to a new job which was similar, if it ever became an issue during naturalization. But if you wanted to avoid all issues then I would say stay as long as you can, at least a few months after you got your green card approval and only then leave.

Let’s say in the AC21 context things become more complicated. This is the worse scenario. Lets say you moved job one to job two and before you could file anything with the government your green card  got approved, so what has happened is, you were hoping to use you AC21 but before you could  inform the government your green card got approved, so you never filed anything formally notifying the government  that  your changing  jobs.

Of course you are not required to under AC21 law. You are not required to file anything. But the fact that you did not file anything, makes it complicated because tomorrow when naturalization time arrives, the government could notice that you left the sponsoring employer ten days before the green card got approved or three days before the green card got approved.

So technically, you never took the job for which the green card was meant. Now again here the argument would be I was going to use AC21, this is a problem in the procedures, it is not something I have done wrong. The AC21 process does not really require government notification by or before a certain time when I am changing jobs and in fact it does not require notification at all, so how can you hold me responsible for something for which I am not even required to inform the government. So what should you do - just make sure you have some documentation that shows that the job that you moved to was substantially similar to the job that your moving from. I would strongly recommend getting a lawyer involved.  And keep that documentation for the next several years if it becomes an issue during naturalization you can provide the documentation and make the AC21 argument.

So the situation where you were doing AC21 and the situation were you are doing basically a job after getting the green card approval  are the same except were the green card gets approved while you are still  in the process of thinking of filing an AC21 level. Otherwise if you change jobs - let’s say you went to job one to job two and you filed a notification with the government and then ten days later the green card got approved now you are in the same situation probably as the guy who stayed at the same job and did not move jobs.

Number 2 question is.... Is there any documentation that one must acquire from his employer at the time of exit?

One point I want to make, what if you want to work and the employer says I don’t have a job for you. I think in those circumstances it is a good idea to have some kind of termination letter or some kind of email or an acknowledgment in the letter that we understand from the employer, that says we understand the you are agreeable to continue to work for us on a indefinite basis however because of XYZ circumstances or business circumstances we can no longer offer you this job. I think that would protect you to a reasonable extent.

There are cases that I have seen a few years ago I did some research on this issue. There were not a whole lot of cases but there were some cases where the government tried to take somebody’s   green card   and the court said: well if the employee is willing and the employer is not what can you do? We should let them keep their green card.

Documentation in cases where the employer is going to lay you off should be kept in the form of a termination letter and if possible some kind of acknowledgement that the employee is willing and able or even some kind of an email that you can send to the employer saying that I am willing to continue with this job on a indefinite basis, I was hoping it will be a permanent job but I understand that you don’t  have it any longer - something like that -  it shows that you have documented - I think we are paranoid, but I think it is better to be paranoid.

Number 3 question is:  How is the naturalization process impacted by exiting the wrong way? How does anyone find out about how you exited if let's say you apply for naturalization after 10 yrs?

They can not only refuse the naturalization they can even try to take away your green card. So one of the things you can do is, remember when you file for naturalization within 5 years of getting your I-485 approval, it is easy to reverse I-485 approval in the first five years, so one of the things you can do is file for naturalization after five years have passed. The law allows you to file 90 days before the five years are over I would say do the naturalization application ten days after the 5 years from the green card approval are over.

That is another thing you can do. That way if they want to come after your green card they (USCIS) have to go through a longer process rather than just revoking your I-485 approval. One concrete suggestion is apply for a naturalization a few days after the five years from the approval of your green card are over.

How does anyone find out about how you exited if let's say you apply for naturalization after 10 yrs?

If you apply after ten years they probably cannot find out. I think the form N- 400 only asks for your employment history for the last five years.

Question 4 :  Can the IO (I guess what you mean is the adjudication officer)involved in the naturalization process reach out to previous employer for any reason? If so how does one prepare for that contingency since the employee (and maybe his boss) might not be with the same employer at the time.

Normally no I have never seen it that happen in over two - three decades of my practice. And of course you point out that by that time maybe the boss and everything is all changed and the answer is yes.  That is a practical difficulty. In fact I was reviewing a case from Seattle, Washington State Federal Courts, where the judge had pointed out that when the government creates a situation where it is impossible for an employee to go back and fulfill the requirements of the evidence the government is asking for e.g.: where there was an I-140 revocation and the employee had already left the employer and now they are trying to go back and revoke the I- 140. He cannot get the documentation that they want. They are trying to revoke the I- 140 several years after it was approved. It’s impossible for the employee to get the information that they are looking for. I think something like that would work for us.

I am not that concerned about the adjudication officer reaching out to the old employer it would be just impossible for any employer to keep the records that long anyway, if it is several years down the line.

Number 5: Can any of the employers that one has worked for before getting the GC approval negatively impact one's naturalization process? Any safeguards that you could recommend

No ... I cannot think of anything, except if there is an active fraud that you have committed and that fraud is against the US government in any way for e.g.:  giving a false degree certification etc then you can have a problem but otherwise there is no issue and during naturalization they don’t go to the old employers.

Number 6: If a previous employer gets into legal issues because of their business practices can that negatively impact one's naturalization process?

Again that depends, if there was fraud in your green card approval that can definitely become an issue. If it becomes part of the record government could actually unravel the I-140 and try to unravel the green card and then of course that affects your naturalization as well. 

Number 7:  What documentation does one need to hold on to for naturalization purposes like paystubs, offer letters etc?

I just described that documentation. Paystubs is always a good idea as we are dealing with some of the cases where USCIS is trying to revoke I-140s for fraud and we are able to prove that there is no fraud because the people that they are coming after were actually working. Here are the paystubs, here are the bank deposits slips that show that this money was not only received from the employer, but also deposited.

Number 8: Can negative information or any information posted on the Internet (social media for example) be used against someone in the naturalization process?

Not unless it was the kind of information which would bar you from getting naturalization such as - it is a crude e.g.:- but let’s say you are trying to solicit a minor for immoral purposes. That could become a problem. Because remember good moral character is part of naturalization- moral character is implicated, at least in my mind when there is something negative being done against US government or the laws of this country. It can become relevant, the information on the social media, but not just because you are an obnoxious person or you are in a bad mood and you have written something bad. It has to be something more than that. I get this question all the time what if I am in bankruptcy does that affect naturalization.  No it does not. Only time you could have a problem is if you skipped on your taxes but even there - a proper bankruptcy discharges some kind of claims and if those claims are discharged they cannot be held against you.

Number 9: Can a disgruntled employer or colleague negatively impact

Again unless you have committed a fraud I don’t see why.

Number 10: General wisdom on what NOT to do after getting one's GC and before citizenship?

Make you file the AR-11. Try not to get arrested. Lead a good life. Other than that I have nothing else to recommend. Most of our clients get a list of things they should be doing. Filing AR-11 is important. Within 10 days of moving address from one place to another you should file AR-11. You can do it online.

I hope this helps. Good luck people!!!