Can I file I-485 for the I-140 filed by a previous employer?
To file a Form I-485, the underlying Form I-140 must remain valid. That is, you need to maintain valid status under the Form I-140 to apply for a green card based on it.
In general, a Form I-140 filed by an employer is tied to the employer’s specific position. Accordingly, to file a Form I-485 based on the Form I-140, you need to remain in the position at the employer that sponsored your green card. That is, if you leave the employer, you will lose the valid status under the Form I-140. In that case, in principle, you will not be able to file a Form I-485 based on the Form I-140.
Among employment-based green cards, an employer but not an employee must apply for those based on the following categories:
- EB-1B (outstanding professors or researchers)
- EB-1C (multinational managers)
- EB-2 PERM (advanced degree/exceptional ability)
- EB-3 (skilled workers, professionals, unskilled workers)
Thus, if your employer filed a Form I-140 for green cards based on the categories above and you no longer work for the employer, in principle you will be unable to file Form I-485 based on the Form I-140.
On the other hand, you can apply for green cards based on the following categories yourself:
- EB-1A (extraordinary ability)
- EB-2 NIW (advanced degree/exceptional ability with National Interest Waiver)
If a Form I-140 was self-petitioned during the employment at the previous employer, the petitioner will be able to file a Form I-485 based on the Form I-140 as it is not tied to specific employers.
What if my previous employer hires me back or my new employer is a successor in interest?
One situation that would allow you to file a Form I-485 based on the Form I-140 filed by the previous employer is the employer hires you back for the position for which the employer sponsored your green card. Another situation is when your new employer is a successor in interest of your previous employer.
In these cases, the Form I-140 must remain valid. That is, it is necessary that the previous employer has not withdrawn or USCIS has not revoked the Form I-140.
Additionally, you must intend to work for the employer for a long term. A Form I-140 petition is to seek an immigrant visa, and the petition must be bona fide. If you leave the employer too soon after the I-485 approval, it may look dubious whether the petition was bona fide and may later affect negatively in your naturalization process. How long would be a reasonable period will vary depending on cases. But it must be long enough for you to be able to establish that the petition was bona fide.
Otherwise, to adjust status by filing a Form I-485, you will need a new Form I-140. You will need to have your new employer file a new Form I-140, or file Form I-140 yourself based on EB-1A or EB-2 NIW categories.
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