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IMMIGRATION JULY 19, 2024 | The Indian Eye 42
Does the Signing of the I-485
Supplement J By a New Employer
Constitute Visa Sponsorship?
CYRUS D. MEHTA and mitting Supplement J (Form ralization. Foreign nationals ularly when addressing the ment earlier and withdraws
I-485J), which confirms the with backlogged Form I-140 standard screening question the offer, could the foreign
JESSICA PASZKO*
new job offer and its compli- priority dates are generally posed by employers to avoid national claim discrimination
ance with the same or similar not envied by their counter- a charge of discrimination or under INA 274B? Prevailing
ortability under Sec- occupational classification as parts whose priority dates are bias: “Do you now, or will you in such a claim is unlikely
tion 204(j) of the Im-
Pmigration and Nation- the original job offer that was current or about to become in the future, require sponsor- under these circumstances.
In the eyes of immi-
ship for employment visa sta-
the basis of Form I-140. Once current. Ironically, the latter
ality Act (INA) allows certain an applicant’s I-140 priority group may find themselves tus (e.g., H-1B visa status, etc.) gration practitioners, and
employment-based green date is current, there is a race green with envy, wishing their to work legally for our com- employers who have been
card applicants to change to file an I-485J before the non-current priority date pany in the United States?” through the PERM process
jobs or employers while their I-485 is approved to ensure could afford them addition- Arguably, a foreign na- once or hundreds of times,
adjustment of status (Form the new employment details al time to secure a job offer tional employed under a val- hiring a foreign national with
I-485) application is pending. are recognized and to avoid when faced with unemploy- id EAD does not necessitate an approved I-140 and pend-
Portability becomes avail- any potential complications ment upon their I-140 priori- ‘sponsorship’ for a visa. Yet, ing I-485 is a hard-to-pass-
able once the I-485 has been in the adjustment process ty date becoming current. the new employer must ex- by bargain especially if they
pending for at least 180 days. or later at the time of natu- We’ve previously ad- ecute an I-485J on their be- have the ideal sought after
It must be exercised by sub-
dressed the dilemma of half. Is an I-485J synonymous skills for the job. The new
a green card being ap- with sponsorship? Technical- employer does not need to
proved prior to filing ly speaking, probably not, start the time consuming and
the I-485J, as well as the though the new employer costly PERM process anew
uncertainties faced by should be apprised of this and gets all the benefit of
foreign nationals termi- material fact which raises the hiring a foreign national that
nated during the “Twi- question of when it would be has been vetted as qualified
light Zone” with an I-485 appropriate to raise this with for the job by both the De-
pending for less than 180 the employer? partment of Labor and US-
days. Yet, in exploring Answering the screening CIS. Surely, it would be silly
these issues, we may have question in the negative can for any employer to pass on
overlooked a crucial ele- be defended, as signing an hiring a prospective employ-
ment of the I-485J: the I-485J does not imply the type ee upon learning that just
employer’s willingness of ’employment visa’ spon- one simple form needs to be
to endorse it. A laid-off sorship the question typical- endorsed for the employer to
worker with a distant pri- ly refers to. While the need take over an I-140 that anoth-
ority date need not fear for an I-485J may not need er company spent significant
these dilemmas or un- to be disclosed during initial time and resources to obtain.
certainties, even if their screening, could withholding Although that might be the
adjustment has been this information until after inherent reaction of the em-
pending for less than 180 signing the offer letter be jus- ployer familiar with immigra-
days. They can diligently tified? Introducing the I-485J tion visa sponsorship, alarm
m of pursue new opportuni- requirement during the inter- bells might go off in the ears
CYRUS D. MEHTA & PARTNERS PLLC ties for similar employ- view process, before the offer of the cautious employer that
ment, assuming their
letter is finalized, could po-
has never sponsored any for-
I-765 application for an tentially complicate matters eign nationals. From the cau-
Employment Authoriza- although the timing of such tious employer’s perspective,
tion Document (EAD) a disclosure should be deter- a signature in the employer’s
has been approved, and mined on a case by case basis. section on the I-485J could
then request their new From the foreign national’s expose them to perjury. The
employer to execute an perspective, it may be pru- I-485J contains one section
I-485J on their behalf. dent to delay discussing the that must be signed by the
However, navigating I-485J until after accepting applicant and another sec-
2 6th Floor this process may not be the offer. However, if the em- tion that must be signed by
straightforward, partic- ployer learns of this require- the prospective employer
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