Am I stuck with my Employer?

By Attorneys Robert L. Reeves and Joseph I. Elias

The recent February 2010 Visa Bulletin shows a somewhat modest advance in visa numbers for skilled and unskilled workers from last month.  Priority dates have reached September 22, 2002 for skilled workers, and June 1, 2001 for unskilled workers.  But, one year ago, these numbers were at May 1, 2005 for skilled, and March 13, 2003 for unskilled.  This retrogression is due more in part to the statutory limits on available visas per fiscal year than it is due to government processing delays.  This is of little consolation to those immigrants waiting for their visa number to become available.

Visa retrogression is an enormous cause of consternation for employment-based immigrants.  This is because immigrant visas are tied to a specific occupation with a specific employer.  One gets a green card, not because he worked for his sponsoring employer in the occupation petitioned, but rather, in order to work in that sponsored position once a green card is issued. 

Many have foregone advancement opportunities for fear of losing the green card.  For instance an entry level systems analyst may refuse a promotion to senior systems analyst, or perhaps even to a software engineer because these are technically considered different occupations than the one sponsored for.  Others have given up lucrative career advancement with different companies because they fear the long wait associated with starting from the beginning.  And, many have seen their sponsoring companies go out of business.

The practical impact of the retrogression of visa numbers is forcing immigrants to stay tied to an employer and occupation.  They are frozen in time and many become indentured servants.  They cannot advance or leave until their visa numbers become available.  And then, they must continue working for their sponsor in the position they were petitioned for many years ago.

There are some forms of relief for these immigrants that allow them to pursue career and job advancement without the fear of losing the green card.  The most common form is known as portability.  This is only available to those immigrants who are fortunate enough to have been able to apply for adjustment of status to permanent resident prior to the retrogression of visa numbers. 

Immigration law allows employment-based immigrants to change employers, or port, if the following factors exist.  First, the immigrant must have an adjustment of status application pending with the USCIS.  Second, the immigrant’s visa petition must have been approved by the USCIS.  Third, the adjustment of status application must have been pending with the immigration service for at least 180 days.  And finally, the immigrant wishes to change employers, or occupation as long as the new, full-time position is in the same or similar occupation.  If all these factors are present, an immigrant may notify the USCIS that he wishes to port employers and complete his adjustment of status with the new position.

For example, the entry level systems analyst in the example above, may elect to port to the position of software engineer with his current or new employer.  This is because software engineer is a similar computer occupation to systems analyst.  One can even port to his own company without having to start the immigrant process anew.  This option is also available to an immigrant whose petitioning employer has since gone out of business so long as the immigrant visa petition is approved and the adjustment application has been pending 180 days.

Porting will greatly benefit skilled workers who were suddenly able to file adjustment applications in July 2007 when visa numbers for this category were last current.  Skilled worker visa numbers have retrogressed since then placing many immigrants in limbo.  With porting, these immigrants may continue to pursue other opportunities in the same or similar occupation and still secure a green card.

The other, less commonly known form of relief is the little known “retention of priority date”.  This is most useful to immigrants who were unable to file adjustment of status applications.  Or, for those who wish to pursue new employment in a completely unrelated field from which they were previously petitioned.  Retention allows an employment based immigrant to keep the earliest priority date of an approved immigrant visa petition for later filed petitions.  Typically starting anew results in a new priority date being assigned to the worker.  But, under the retention rule, if the immigrant has an approved employment-based immigrant visa petition with an older priority date, the immigrant may keep the older date. 

For example, Jane has an employer who filed a labor certification for her on June 1, 2003 as a bookkeeper.  The employer’s immigrant visa petition was approved by the USCIS.  While waiting for her June 1, 2003 priority date to become current, Jane’s employer goes out of business.  She finds a new employer who is willing to petition her as mortgage loan processor. (Note this is a completely different occupation.)  This employer files a labor certification for her on December 5, 2009.  Because her previous employer’s immigrant visa petition was approved, Jane keeps the June 1, 2003 priority date with the new employer despite the December 5, 2009 filing. 

A consequence of visa retrogression is that it sets up employment based immigrants to become indentured servants.  Both portability and retention of priority date provides limited flexibility to immigrants for a less than ideal system.  Both are governed by their own sets of rules and USCIS interpretations on their scope and applicability.  They provide the only relief until Congress provides a fix to this incorrigible dilemma our employment based immigrants face.