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IMMIGRATION                                                              JULY 26, 2024     |  The Indian Eye 34





                   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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