Job Offer Requirement at Filing and Approval

Does the employment-based job offer have to remain valid?

Current 8 C.F.R. §245.25 expressly requires a valid offer of employment based on a valid qualifying petition at filing and adjudication. The applicant must also intend to accept the qualifying employment.

Which employment categories require a job offer?

Because these categories operate differently, a change of employer may be irrelevant in an EB-1A or ordinary NIW case but potentially decisive in an EB-2 PERM or EB-3 case.

The job offer must exist when Form I-485 is filed

For a job-offer-based employment adjustment case, the I-485 cannot properly rest on an employment opportunity that no longer exists when the application is filed.

The applicant should be able to establish that:

• The employer continues to offer the permanent position underlying the qualifying I-140.
• The employer has not withdrawn or eliminated the offer before filing.
• The applicant genuinely intends to accept the offered employment after permanent residence is granted.
• The underlying I-140 remains valid or is properly pending under the applicable concurrent-filing rules.
• The position remains consistent with the petition and any applicable labor certification.

The job offer must also support the case at adjudication

USCIS must determine eligibility through final adjudication. If the original employer continues sponsoring the applicant, the employer and applicant may confirm the continuing offer through Form I-485 Supplement J.

If the original employment offer no longer exists, the applicant must determine whether the I-485 can continue through INA §204(j), a transfer to another underlying immigrant basis, or another legal mechanism.

A pending I-485 does not by itself preserve a job offer that has been permanently withdrawn.

The applicant does not necessarily need to work for the petitioner before approval

Employment-based immigrant petitions frequently concern employment that will begin after the beneficiary becomes a lawful permanent resident. USCIS therefore distinguishes a permanent immigration job offer from current work authorization.

An applicant could therefore be working for another employer under valid H-1B status, working on an adjustment EAD, or not presently employed by the petitioner while still having a bona fide future permanent employment arrangement.

The employer must intend to employ the applicant

The employer's intent must also be genuine. USCIS may examine whether the offered permanent position actually exists and whether the employer plans to employ the beneficiary in that position within a reasonable period after adjustment approval.

Potential evidence includes:

• Form I-485 Supplement J.
• A current employer letter.
• Organizational records showing the continuing position.
• Job description and work location.
• Evidence of ongoing business operations.
• Payroll or personnel records when relevant.
• Evidence concerning corporate restructuring, acquisition, or successor issues.

A paper offer created only to support immigration benefits can result in denial and potentially broader fraud or misrepresentation concerns.

The applicant must intend to accept the job

The beneficiary's intent matters independently from the employer's intent. The applicant must genuinely intend to work in the qualifying permanent position within a reasonable period after becoming a permanent resident.

USCIS does not impose a universal rule requiring the applicant to remain with the employer for a specific number of months after approval. The relevant question is whether the employment offer and the applicant's intent were bona fide when required.

What if the applicant already works for the employer?

Existing employment can provide strong evidence that the permanent offer is genuine, but current employment and the immigrant job offer remain legally distinct.

The applicant's present employment may be:

• H-1B employment.
• L-1 employment.
• O-1 employment.
• Employment authorized through an EAD.
• Another independently authorized work arrangement.

The fact that the applicant is already performing similar work does not eliminate the need to confirm the permanent position when required. Conversely, an applicant who is not yet working for the petitioner is not automatically ineligible.

What if the employer changes the job?

Changes to title, duties, worksite, salary, reporting structure, or organizational placement should be analyzed to determine whether the job remains the same position described in the underlying petition or whether another immigration mechanism is required.

Minor changes arising from ordinary business operations do not necessarily destroy the petition. A material change before portability is available can be much more significant.

Where the applicant qualifies for INA §204(j), a genuinely new job may support the pending I-485 if it is in the same or a similar occupational classification and the other portability requirements are satisfied.

Employer restructuring, mergers, and successors

A corporate transaction does not automatically terminate every employment-based immigrant case. The legal effect depends on the nature of the transaction and the immigration classification.

Issues can include:

• Whether the petitioning entity continues to exist.
• Whether another entity is a qualifying successor in interest.
• Whether the permanent position remains available.
• Whether the employment location or duties materially changed.
• Whether a new I-140 is required.
• Whether INA §204(j) portability is already available.

EB-1C cases may require additional attention because the qualifying multinational corporate relationship is part of the immigrant classification itself.

Form I-485 Supplement J confirms the offer

Supplement J is USCIS's principal form for confirming the continuing bona fide job offer in qualifying I-140-based adjustment cases.

When an applicant files Form I-485 based on an already approved job-offer-based I-140, Supplement J generally accompanies the I-485. It generally is not required with the initial I-485 when the I-140 is concurrently filed or still pending, although USCIS may later request the supplement.

The form also serves a second function: requesting INA §204(j) portability after the statutory requirements have been met.

See Form I-485 Supplement J.

What happens after the I-485 has been pending for 180 days?

INA §204(j) can allow a qualifying first-, second-, or third-preference employment adjustment applicant to replace the original permanent job offer with a new full-time permanent job in the same or a similar occupational classification.

The new offer can come from:

• The original petitioning employer.
• A different U.S. employer.
• A qualifying self-employment arrangement.

The availability of portability can therefore prevent the loss of a long-pending adjustment case merely because the original employment changes after the statutory period.

Employer withdrawal does not always revoke the I-140

The regulations distinguish withdrawal of the permanent job offer from revocation of the approved immigrant petition.

In certain cases, an approved I-140 that has been approved for at least 180 days, or that is associated with an I-485 that has been pending for at least 180 days, is not automatically revoked merely because the petitioner withdraws it.

That does not necessarily mean the applicant can obtain permanent residence without a qualifying job offer. If the original employer no longer offers the position, the applicant ordinarily needs a qualifying §204(j) employment offer or another valid underlying basis.

A valid I-140 remains essential

Job portability cannot cure an immigrant petition that was never substantively approvable. If the I-140 was deficient because the beneficiary did not qualify, the labor certification was invalid, the petitioner lacked eligibility, or another fundamental petition requirement failed, passage of time does not create a valid petition.

For a pending I-140 involved in a portability case, 8 C.F.R. §245.25 contains special adjudication rules. USCIS must still determine that the petition met the required eligibility standard through the applicable period.

Ability to pay and the continuing job offer

In ordinary employer-sponsored I-140 adjudication, the petitioner generally must establish ability to pay the proffered wage from the priority date until the beneficiary becomes a permanent resident.

A special rule applies when a pending qualifying I-140 becomes subject to INA §204(j) portability after the associated I-485 has been pending for 180 days. Under 8 C.F.R. §245.25, the original petitioner's continuing ability-to-pay obligation can be limited under the regulatory portability framework.

This issue concerns petition validity and should be distinguished from whether the applicant presently earns the labor-certification wage.

Visa retrogression does not eliminate the job-offer requirement

A Form I-485 may remain pending for years because an employment priority date retrogresses. The passage of time does not itself eliminate the need for a valid employment basis.

If the applicant remains with the original employment basis, the qualifying permanent offer must remain available for final adjudication. If the applicant properly ports under INA §204(j), the qualifying new offer becomes the relevant employment basis.

See Visa Retrogression After Filing Form I-485.

Changing the underlying immigrant basis

An applicant sometimes obtains another approved or pending immigrant petition while Form I-485 is pending and asks USCIS to transfer the adjustment application to the new basis.

That procedure is different from job portability. A transfer of underlying basis substitutes a different immigrant petition or category, while INA §204(j) generally preserves the qualifying original I-140 and substitutes a new employment offer.

See Transfer of Underlying Basis / Interfiling.

Evidence that the employment offer remains valid

• Current Form I-485 Supplement J.
• Current employer confirmation letter.
• Description of the permanent position and duties.
• Worksite information.
• Salary or compensation information.
• Employer organizational evidence.
• Evidence of corporate restructuring where relevant.
• Applicant declaration of intent to accept the permanent position.
• Current employment records if they help demonstrate the ongoing relationship.
• New-job evidence where INA §204(j) portability is invoked.

Common job-offer problems

Primary authorities

Related INA245.com guides

Frequently asked questions