I received my GC EAD but it will be a few months until my AOS goes to pending state for 6 months. Right now AOS been pending for 2 months and it has been 2 months since my I-140 was approved. Can I use my GC EAD and start working for a new employer today? If so will it affect my pending AOS application? Please advise.
You will need to wait for 6 months before changing employer to avoid your existing employer withdraw your I-140/485.
If the employer doesn’t withdraw the petition then what happens? Does withdrawal of I-140 invalidate EAD as well?
Under the AC21 job portability under section 106(c) an adjustment of status applicant who has an I-485 application pending for 180 days or longer is able to continue with the green card process even after the employee has changed employers, as long as the new job is in the same or a similar job classification.
Specifically, AC21 permits an individual to transfer, or “port”, his or her green card process to a different employer if (1) the new job is the “same or similar”, (2) Form I-140 has been approved or is approvable when filed concurrently with Form I-485, and (3) Form I-485 has been pending for at least 180 days.
If you want to change employer at this point ( before 180 days mark), you wont be able to use EAD and will need to maintain H1B status with new employer.
Your current employer may not withdraw I-140 and I-485 after you leave, provided they are willing to offer your the green card job when your GC is approved. Otherwise your new employer will need to restart your GC process from scratch, i.e. filing PERM, I-140 and then I-485.
If you change employer after 6 months of pending I-140/I-485, you will be able to use EAD with new employer. The new employer may file I-485J suppliment to take over your GC process.
Yes, it will also invalidate I-485.
Thanks for the detailed reply. Does this mean that my ex-employer is required/obligated to withdraw my I-140, I-485 once I leave my position or do they have a choice?
Already replied above, they may not withdraw if they are willing to offer your the GC job.
Sorry, I’m still not clear on what you mean by willing to offer me my GC job. Let’s say that my employer does mass layoffs and I get laid off. In that case are they required to withdraw I-140?
Another scenario is - I leave out of my own volition. What happens then?
In both cases my employer was willing to offer me my GC job at the time I-140 and AOS were filed.
Employer is not obligated to withdraw the i140 but if they don’t withdraw, the liability of holding the i140 remains with the employer.
Basically, whenever the employer files a new i140 for any new employee, they have to keep the salary offered on all active i140 on their name into account to prove they have enough resources to pay the new i140.
Hence, most employers opt to withdraw the i140 once the employee leaves to reduce the liability and make space for new i140s.
That’s why @Kalpesh_Dalwadi has mentioned that if the employer chooses to keep the i140 active, they may decide to keep the GC job offer active.
Thanks, that helps. One more follow up - Is there a way for me to know if my ex-employer has or has not withdrawn my I-140?