Yes, an employee can usually keep the priority date after changing employers, but only once the I-140 has been approved. Under 8 CFR 204.5(e), an approved EB-1, EB-2, or EB-3 petition gives the worker its priority date for any later employment-based petition, and the date is lost only if USCIS revokes the approval for fraud, misrepresentation, a revoked or invalidated labor certification, or a material error. A withdrawal by the old employer does not cost the date. What changing jobs usually does cost is the case itself: the new employer must file its own PERM and I-140. The exception is AC21 portability under INA 204(j). Once the I-485 has been pending 180 days or more and the I-140 is approved, the employee can move to a same or similar job and keep the same green card case by filing Form I-485 Supplement J. The stage at which the employee leaves decides everything.
Key takeaways
Before the I-140 is approved there is no priority date to keep; the new employer starts from scratch. After approval, the date travels with the employee, even if the old employer withdraws the petition. An I-140 withdrawn 180 days or more after approval, or after the I-485 has been pending 180 days, stays approved and still supports H-1B extensions past six years. With the I-485 pending 180 days, the employee can port to a same or similar job with Supplement J and no new PERM. Employers may not recover PERM costs from the employee.
What happens at each stage if the employee leaves
An employment-based green card has three filings, each tied to one job at one employer. The PERM labor certification is valid only for the particular job, the named worker, and the area of intended employment (20 CFR 656.30(c)(2)). The I-140 rests on that certification, and the I-485 rests on the I-140 and a job offer the worker intends to accept. The question is what survives a move.
| Stage when the employee leaves | Priority date | What the new employer must do |
|---|---|---|
| Before PERM is filed | None exists yet. | Start its own PERM and I-140. |
| PERM pending or certified, I-140 not filed | None. A certification is valid only for the old job and expires 180 days after certification if no I-140 is filed. | Start its own PERM and I-140. |
| I-140 pending | None unless the petition is approved. A denied petition never establishes a date, and the old employer normally withdraws. | Start its own PERM and I-140. |
| I-140 approved less than 180 days | Kept, unless revoked for fraud, misrepresentation, labor certification problems, or material error. | New PERM and I-140, which can carry the earlier date. If the old employer withdraws now, the approval is automatically revoked. |
| I-140 approved 180 days or more | Kept. A withdrawal leaves the petition approved. | New PERM and I-140 with the earlier date. The old approval still supports H-1B extensions past six years. |
| I-485 pending less than 180 days | Kept if the I-140 is approved. | No portability yet. The case still depends on the old employer’s offer, or a new PERM and I-140. |
| I-485 pending 180 days or more | Kept. | No new PERM or I-140 if the job is same or similar: the employee files Supplement J, signed by the new employer. |
Keeping the priority date
For a PERM-based case, the priority date is the day the Department of Labor accepted the labor certification for processing (8 CFR 204.5(d)). It is the employee’s place in the Visa Bulletin line, and in backlogged categories it can be worth years. Our guide to priority dates and the Visa Bulletin explains how the line works.
The retention rule is in 8 CFR 204.5(e). An approved petition gives the worker its date for any later EB-1, EB-2, or EB-3 petition, and a worker with several approved petitions keeps the earliest one. Before 2017, any revocation, even one caused only by the employer’s withdrawal, wiped out the date. The 2016 DHS final rule changed that: retention now applies even when approval is revoked based solely on withdrawal. Keeping the date does not keep the job offer, though. The new employer still files its own PERM and I-140, and that case then uses the earlier date.
This is why job changes are common during retrogression. When an employee faces a multi-year wait, as our employer guide to retrogression describes, an approved I-140 lets them move without losing their place in line.
AC21 portability after the I-485 is pending 180 days
Section 204(j), added by the American Competitiveness in the Twenty-first Century Act (AC21), lets an adjustment applicant keep the same green card case through a job change. The USCIS Policy Manual and 8 CFR 245.25 set the conditions:
- The I-485 has been pending for 180 days or more.
- The I-140 is in EB-1, EB-2, or EB-3 and has been approved, or it was pending at day 180 and is later approved (without the old employer having to keep proving ability to pay), and the approval has not been revoked.
- The new job is in the same or a similar occupational classification as the job in the I-140.
- The original job offer was genuine when filed, and the worker and new employer intend the new job to start within a reasonable time after approval.
The new job can be with a different employer, with the same employer, or in self-employment. EB-1 extraordinary ability cases are not tied to a job offer, so those applicants can change employers without using 204(j) at all.
The same or similar test
"Same" means the new occupation resembles the old one in every relevant respect. "Similar" means it shares essential qualities or has a marked resemblance. USCIS looks at the whole record: duties, skills, experience, education, licenses, wages, and the Department of Labor’s Standard Occupational Classification (SOC) codes. Matching six-digit SOC codes are viewed favorably, and codes in the same broad occupation group are generally treated as similar, but codes alone do not decide it. Career progression counts, such as an engineer promoted to manage engineers doing the same work. A pay difference alone does not defeat a port, but a substantial wage gap should be explained.
Form I-485 Supplement J
The port is requested on Form I-485 Supplement J. The applicant and the new employer’s authorized signatory both sign it, and it describes the new job, including its SOC code. Evidence includes the I-485 receipt showing 180 days or more and the I-140 approval or receipt. It can be filed on the employee’s own initiative, at an interview, or in response to a USCIS request; we file it promptly after the move rather than wait to be asked. If USCIS finds the new job is not same or similar, it denies both the supplement and the I-485, so the job description deserves the same care as the original PERM.
Working, and staying in status, while the green card is pending
Most sponsored professionals are in H-1B status, and a new employer can hire them under H-1B portability as soon as it properly files its own petition; see our page on H-1B transfers. A pending I-485 also allows an employment authorization document (EAD) not tied to any employer, though most renewals no longer get an automatic extension, as our guide to working while an I-485 is pending explains. The EAD lets someone work anywhere, but the green card case still needs a valid offer or a 204(j) port.
H-1B extensions past six years
Under 8 CFR 214.2(h)(13)(iii), an H-1B worker can stay beyond the six-year limit in two ways. A one-year extension is available when a PERM or I-140 was filed at least 365 days earlier and has not been finally denied, revoked, or closed. A three-year extension is available when the worker has an approved I-140 and a visa is unavailable only because of the per-country limit. The H-1B employer does not have to be the one that filed the green card case, so a new employer can extend an incoming hire on the old employer’s I-140, as long as that approval has not been revoked. Workers with an approved I-140 and a visa unavailable may also apply for a discretionary one-year EAD under 8 CFR 204.5(p) if they show compelling circumstances.
Resigning before day 180 can strand the case
With the I-485 pending less than 180 days, the employee cannot port; the case still rests on the old employer’s offer. If that employer withdraws an I-140 approved fewer than 180 days earlier, USCIS automatically revokes it and the I-485 fails with it. The priority date survives; the extension basis and the case do not. Check both dates before anyone resigns or withdraws anything.
An employee with a green card case is changing jobs?
Request a free consultation. We check the I-140 and I-485 dates, the same or similar question, and the H-1B timing, then quote a flat fee for each filing in writing.
The sponsoring employer’s side
Withdrawing the I-140
When a sponsored employee leaves, the employer generally should tell USCIS the job offer is gone, but it should know what a withdrawal does. Under 8 CFR 205.1, a withdrawal filed less than 180 days after approval automatically revokes the I-140, unless the I-485 has been pending 180 days. A petition withdrawn 180 days or more after approval, or after the I-485 has been pending 180 days, remains approved. The same rule applies if the employer’s business closes. A withdrawal rescinds the job offer, but it does not take back the employee’s priority date, extension eligibility after day 180, or a valid 204(j) port. It does not undo the investment.
Budgets and repayment agreements
Under 20 CFR 656.12(b), an employer may not seek or receive payment of any kind for activity related to the labor certification, including its own attorney’s fees, whether up front or as reimbursement. Payment includes wage deductions and other wage concessions. A repayment, or "clawback," agreement that recovers PERM costs when the employee leaves is therefore off limits. For H-1B workers, Department of Labor rules also bar a penalty for leaving before an agreed date; state law decides whether a sum is a permitted liquidated damages amount or a forbidden penalty, and the H-1B training fee can never be recovered. Have any repayment term for I-140 or I-485 costs reviewed before it is signed. Practical retention tools that stay within these rules include:
- A written sponsorship policy that sets which filings the company pays for and when, applied the same way to every sponsored employee.
- Starting PERM early, so extensions past six years are available and the employee has less reason to leave.
- Budgeting each year for the extensions, EAD and travel document renewals, and family filings that long waits create.
- Tracking every sponsored employee’s I-140 approval date and I-485 receipt date, the two dates that decide what a resignation costs.
Promotions and role changes inside the same company
Promotions cause more avoidable trouble than resignations. The green card is for the certified job, and the employee must intend to take that job when the green card is granted. USCIS requires a new labor certification when the worker will be employed in a new geographic area or after any other material change in the job opportunity. A remote move to another metro area can trigger it just as much as a new title.
Before the I-485 has been pending 180 days, a role that departs materially from the PERM job usually means a new PERM labor certification and I-140 for the new position. The employee keeps the earlier priority date if the first I-140 was approved. Small raises, a title change within the same duties, or added responsibilities often fit the existing case. After day 180, a promotion to a same or similar role can be handled through 204(j) and Supplement J with the same employer, including career progression into management over the same work. Check the dates before announcing a promotion.
Mergers, acquisitions, and successor-in-interest
When a company is bought or merges, a pending green card case can continue with the new owner as a successor-in-interest without a new labor market test. The USCIS Policy Manual sets three conditions. The job must stay unchanged: same pay rate, metropolitan area, duties, and requirements. The successor must prove every eligibility element, including that the predecessor could pay the wage up to the transfer and that the successor can pay it from then on. And the petition must document how ownership passed, with merger agreements, asset purchase records, or similar evidence. The successor files an amended I-140, accepted even if the labor certification has since expired. If the predecessor stopped operating before the transfer or the business lapsed substantially, a new PERM is needed. Employees with an I-485 pending 180 days may rely on 204(j) instead.
How Atlas Immigration Law helps
We advise employers on both sides of a job change during the green card process: the sponsoring company deciding whether and when to withdraw, and the hiring company deciding whether it needs a new PERM, an I-140 that carries the earlier priority date, a Supplement J for a 204(j) port, or an H-1B extension based on the old approval. Every employment-based green card matter runs on a flat fee agreed in writing and billed at milestones, with a dedicated paralegal reachable by call, email, or text, same-business-day responses, and attorney Jordan Weinberg reviewing every filing. Employers follow each case in the Atlas Vision client portal. Atlas is based in Dallas and represents employers in all 50 states. Request a free consultation to review a sponsored employee’s dates before anyone resigns, transfers, or withdraws a petition.
Frequently asked questions
Can an employee keep their priority date after changing employers?
Yes, once the I-140 has been approved. Under 8 CFR 204.5(e), the date carries over to any later EB-1, EB-2, or EB-3 petition unless USCIS revokes the approval for fraud, misrepresentation, a labor certification problem, or material error. A withdrawal by the old employer does not cost the date. The new employer still files its own PERM and I-140 unless the employee can port under INA 204(j).
What happens if the employer withdraws the I-140 after the employee leaves?
It depends on timing. A withdrawal less than 180 days after approval automatically revokes the petition, unless the I-485 has been pending 180 days. A withdrawal after either 180-day mark leaves the petition approved. In both cases the employee keeps the priority date, but only a still-approved petition supports three-year H-1B extensions and portability.
Does a new employer have to start a new PERM?
Usually, yes. A labor certification is valid only for the job, worker, and area it names, so a new employer normally files its own PERM and I-140, which can carry the earlier priority date. The exception is AC21 portability: if the I-485 has been pending 180 days and the I-140 is approved, the employee can move to a same or similar job with Supplement J and no new PERM.
What is Form I-485 Supplement J?
It is the form an adjustment applicant uses to confirm the original job offer or to request portability to a new job under INA 204(j). Both the applicant and the new employer’s authorized signatory sign it, and it describes the new job, including its SOC code. USCIS uses it to decide whether the new job is in the same or a similar occupational classification.
How does USCIS decide whether a new job is same or similar?
It looks at the whole record: duties, skills, experience, education, licenses, wages, and Department of Labor SOC codes. Matching six-digit SOC codes are viewed favorably, and codes in the same broad group are generally treated as similar, but codes are not the only factor. Career progression, such as moving into management over the same work, can qualify.
Can an H-1B worker extend past six years with a new employer?
Often, yes. A three-year extension is available with an approved I-140 when a visa is unavailable because of the per-country limit, and a one-year extension when a PERM or I-140 was filed at least 365 days earlier. The new H-1B employer does not have to be the one that filed the green card case, as long as the old approval has not been revoked.
Can a sponsored employee be required to repay green card costs if they leave?
Not for the labor certification. Department of Labor rules bar employers from seeking or receiving any payment related to PERM, including attorney’s fees and wage deductions. For H-1B workers, penalties for leaving early are also prohibited, while bona fide liquidated damages depend on state law. Any repayment term for later-stage costs should be reviewed before it is signed.
Does a promotion require a new PERM?
It can. A new labor certification is required when the job materially changes or moves to a new geographic area. Before the I-485 has been pending 180 days, a substantially different role usually needs a new PERM and I-140, with the earlier priority date kept. After 180 days, a same or similar promotion can be handled through 204(j) with Supplement J.
This guide is part of our employment-based green card services — the service page covers eligibility, fees, and how we handle these cases.
Founder & Managing Attorney, Atlas Immigration Law
Member of the American Immigration Lawyers Association (AILA) and the Dallas Bar Association. Licensed to practice in Texas; fluent in English and Spanish.
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This guide is general information, not legal advice, and reading it does not create an attorney-client relationship. Immigration law and procedures change, and how they apply depends on your specific facts — consult a licensed immigration attorney about your situation.