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If I quit my H-1B job while the I-526 is pending, do I need to leave the United States?

I am an Indian living in the United States on an H-1B visa. My employer filed for my green card 10 years ago and my priority date will take another 3 years to become current. I have an I-485 approved and have an EAD card. I live in Boston and am planning to apply for an EB-5 visa. I have the capital and relationships with developers and builders in the Greater Boston area. I know I can also invest in an approved regional center. While waiting for the I-526 to be approved (around 20 months or more), what will my status become if I quit my current job? Will I have to be out of the country until my I-526 gets approved? What options do I have?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    It is possible to port to the same or similar employment. It is not clear whether your I-485 is approved or pending and you have an EAD based on a pending I-485. If your priority date is not current, then you would not be eligible to file an I-485. A pending I-526 petition will not provide you a status to lawfully remain in the US or allow you to be employed if you quit your current H-1B employment. You should consult an immigration attorney to advise you more specifically.

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    Raymond Lahoud

    Immigration Attorney
    Answered on

    Should you leave your current H-1B position, you will no longer be in status and would have to depart the United States until your petition is ready for consular processing abroad.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    In order to be in valid immigrant status, you must continue to work for your H-1B petitioner. Since you have a pending (not approved) Form I-485 and EAD, however, you are in a period of authorized stay while that application is pending. That means you are legal in the United States and you have work authorization so, technically, as long as you maintain the intention to work for your green card sponsor (and as long as they maintain the intention to hire you in the full-time permanent position listed on the I-140), your pending I-485 remains valid and you do not need the underlying H-1B status. You can apply for EB-5 by submitting an I-526 petition after you make a qualifying investment and you can keep both immigrant cases pending while you remain in the United States. Since your case involves several issues, it would make sense for you to contact an experienced immigration attorney and consider your options.

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    Charles Foster

    Immigration Attorney
    Answered on

    Normally, if one is in H-1B status and they quit their job, they lose their status and they will accrue unauthorized presence in the United States even if they have filed an EB-5 immigrant visa petition on Form I-526. However, if you are able to file an Application for Adjustment of Status on Form I-485 and have a valid Employment Authorization Document (EAD), then you have an alternative basis to remain in the U.S. while waiting for the approval of your I-526 petition.

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    Michael A Harris, Esq

    Immigration Attorney
    Answered on

    You will be out of status if you quit your H-1B job. While there may be a question of whether unlawful presence may or may not accrue during that time, I would not recommend you continue to stay in the United States following terminating employment. In fact, your H-1B employer will need to advise USCIS of the termination or that you left the position. At that point, it could be possible that USCIS could make a finding that you are accruing unlawful presence in the United States. And, if you then accumulate too much time unlawfully and then depart the U.S., you may be barred from reentry for many years. It may be best to keep your H-1B job going or to evaluate whether you can seek a change of employer H-1B petition.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    If you quit your job, you will be out of status. You must leave the United States.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If you mean to say you have an I-485 pending and an EAD approved, the law says you can port to the same or similar employment, or even to self-employment once the I-485 has been pending 180 days. If you quit your H-1B employment, you need to find the same or similar position. Filing the I-526 gives you no rights.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    Filing an I-526 provides no immigrations status. So, if you fall out of H1B status, you will need to leave the United States.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    If your I-485 is approved as your facts state then you are a permanent resident. If this is an error and you are just quitting your H and filing the I-526, you need to return home or change to another nonimmigrant status.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    If you filed your I-485 when the quota was current for your category/country, then you should be able to stay here until your green card is issued, even if you quit your H-1B job. However, when your quota number is current again, you need to adjust your status with an I-485. Some lawyers have had success using their old pending I-485s to adjust their status with a different I-40 or similar approval, but some have reported that it is hard to do that. Filing for an EB-5 now will not do you much good. It is taking 20-24 months to get an approval plus about another year for the I-485 to be approved. The filing fees would be about $5,000 (more if you have a wife/children). And most lawyers charge between $10,000-$15,000 to do EB-5 cases. It simply would not pay to do this.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    If you have an I-485 approved, then you do not need to do an EB-5 case as you are already a permanent resident. Did you file the I-485 adjustment of status application? I would think not since you said you have another 3 years before the priority date becomes current. If you mean you have an EAD under H-1B, then, if you quit your job, you no longer have a status to stay. If you had already filed the I-485 and you have an EAD under that, then you could remain under the adjustment pending status, but if the employer changes his mind and not go through to the end because you quit, then you cannot remain in the country. As the immigration process has many pitfalls and consequences depending on what your situation is, you should discuss the ramifications of your actions with your lawyer before taking any action.

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    Barbara Suri

    Immigration Attorney
    Answered on

    A pending I-526 does not grant legal status. If you give up your legal H-1B status, you will need to leave the U.S. and apply for your EB-5 visa overseas.

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