Persons of extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise. Such applicants do not have to have a specific job offer so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability. Such applicants can file their own petition with the CIS, rather than through an employer;

Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the CIS; and

Certain executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant must be coming to work in a managerial or executive capacity. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with the CIS.

All categories requiring labor certification also require the applicant to remain with the sponsoring employer. If the employee leaves, then the labor certification is automatically voided and the employee is no longer entitled to immigration benefits.

The one area that is in a state of uncertainty right now is the "national interest waiver" ("NIW") classification. The statute (law) explicitly states that an NIW petition approval can only be made where the C.I.S. waives the entire job offer - not just the labor certification - in "the national interest." Logically, it would seem that if the job offer is waived, it would not matter if the employee changes employers (but remains in the same field of work) while immigration is pending. Some C.I.S. service centers take the positions that a self-petitioned NIW beneficiary may change employers, while an employer-petitioned beneficiary may not. This is a rapidly changing situation and anyone in this classification needs to examine the most recent policies carefully before acting.

Having said all that, the American Competitiveness in the Twenty First Century Act, amended the law in 2000 to allow a worker to change jobs or employers if the following conditions have all been met:

An application for adjustment of status has been filed by the worker;

The application has remained unadjudicated for more than 180 days; and,

The worker's new job is in the "same or a similar occupational classification".

Because this is a large country, with vastly different employment situations in different parts of the country, the labor certification program is highly specific to the job site where the alien worker will be employed. The employer must prove that the sponsored employee will earn a salary that meets or exceeds the average salary for similarly qualified U.S. workers in the same area. Also, the employer must prove that there are no similarly qualified U.S. workers, in the local area, who are available and willing to accept the employer's job offer. For these and other reasons, a labor certification is not transferable to another employer.

When someone immigrates to the U.S. in a category that requires labor certification, both the employer and employee must make good faith representations that the job offer still exists and that the employee will work for the employer "indefinitely" after immigration to the U.S. The term "indefinitely" in this context means that neither side has any current plans to end the employer-employee relationship.

This is not a permanent employment contract and the employer may terminate the employee for any reason. Similarly, the employee may also leave the job for any reason.

If there is a clearly valid reason for the termination, such as the employer's business took an unexpected downturn and the employer had to lay off workers, then there should never be a problem. Similarly, if there are problems between the employer and the employee that lead to an impossible situation, the government will probably understand. Unfortunately, too many people view the process as a simple "paper requirement" rather than what it was intended to do: provided American employers with workers who have skills that are in short supply.

The recent changes in the law made by the AC21 legislation have clearly had an impact on this issue. It now seems certain that any adjustment applicant who changes jobs after his or her application has been pending for more than 180 days (and who otherwise qualifies for "I-140 portability") is in the clear.

Similarly, based on the legislative history of the AC21 legislation, it would seem that a consular processing immigrant who at least reports for work following his or her entry into the U.S. as an immigrant would also be free to leave immediately.

The bigger issue is not the timing of the departure, but whether the new immigrant expressed fraudulent intent when immigrating. As long as there is any reasonable basis for changing jobs after the acquisition of immigrant status, it looks as though there won't be any problems later.

The most common instances where this issue comes to the attention of the C.I.S. are situations where that agency must review the employee's file, such as in the context of an application for a reentry permit, or an application for naturalization. In other cases, the employer may complain to the C.I.S. that a sponsored employee left the job shortly after immigration.

The penalties in these cases can include rescission of employee's immigrant status and possibly even a lifetime ban on reentering the U.S.