Employer Termination While Form I-485 Is Pending

What happens if the petitioning employer goes out of business?

Which petitions are covered by the business-termination rule?

8 C.F.R. §205.1 specifically addresses termination of the petitioning employer's business for petitions under INA §203(b)(1)(B), §203(b)(1)(C), §203(b)(2), and §203(b)(3).

Self-petitioning classifications such as EB-1A and ordinary National Interest Waiver cases do not depend on a sponsoring employer's permanent job offer in the same manner.

The first question: when did the employer's business terminate?

The exact termination date can control whether an approved employment petition is automatically revoked.

The regulation protects the petition if either of these conditions was already satisfied:

• The Form I-140 had been approved for at least 180 days before the business terminated; or
• An associated Form I-485 had been pending for at least 180 days before the business terminated.

If neither protection existed when the petitioner's business terminated, automatic revocation may occur under 8 C.F.R. §205.1(a)(3)(iii)(D).

The two 180-day protections

These protections concern petition validity. They do not preserve a job offer from a company that no longer operates.

The permanent job offer ends when the employer's business terminates

Current regulations expressly provide that termination of the petitioning employer's business rescinds the petitioner's job offer.

That means an applicant cannot ordinarily obtain adjustment approval merely by proving that the I-140 technically remains approved.

The applicant generally must establish one of the following:

• A qualifying new job under INA §204(j);
• A new employment-based immigrant petition;
• A qualifying transfer of the pending Form I-485 to another immigrant basis; or
• Another independent legal basis that permits the adjustment application to continue.

See Job Offer Requirement at Filing and Approval.

INA §204(j) can preserve the adjustment case

If the qualifying Form I-485 has already been pending for at least 180 days, the applicant may potentially continue the case through AC21 Job Portability.

The new employment generally must be:

• A bona fide employment offer;
• Full-time;
• Permanent;
• In the same or a similar occupational classification as the job underlying the qualifying I-140; and
• Employment that the applicant genuinely intends to accept after adjustment approval.

The new offer can come from another U.S. employer and, in qualifying circumstances, may be based on self-employment.

Form I-485 Supplement J after employer closure

A qualifying applicant generally documents the new permanent employment through Form I-485 Supplement J.

The new employer provides information concerning:

• The employer and business;
• The offered permanent position;
• Job duties;
• Occupational classification;
• Work location;
• Compensation; and
• The employer's intent to employ the applicant.

The applicant certifies the intent to accept the qualifying employment.

The new job must be same or similar

Portability does not permit substitution of any permanent employment. The replacement occupation must satisfy INA §204(j).

USCIS may consider:

• Actual job duties;
• Skills and specialized knowledge;
• Education and experience requirements;
• Licenses and certifications;
• Standard Occupational Classification codes;
• Compensation;
• Career progression; and
• The totality of the evidence.

See Same or Similar Occupational Classification.

What if the company closes before the I-485 reaches 180 days?

This is one of the more difficult employment-based adjustment scenarios.

If the employer ceases business before the I-485 has been pending 180 days, INA §204(j) ordinarily is not yet available.

Possible consequences depend on whether the I-140 separately reached its own 180-day protection:

A protected I-140 does not automatically solve an early closure

Suppose the I-140 has been approved for 200 days but Form I-485 has been pending only 60 days when the company closes.

The petition may remain approved because the I-140 itself passed the 180-day protection. But the applicant generally cannot yet invoke INA §204(j), because the I-485 has not been pending for the required 180 days.

The applicant therefore can face a gap between:

• Preservation of the approved petition; and
• Availability of job portability.

This is the same critical distinction discussed in I-140 Withdrawal After 180 Days.

What if the company is acquired rather than closed?

A merger, acquisition, reorganization, asset purchase, or change of ownership does not necessarily mean the petitioning employer's business has legally terminated for immigration purposes.

The first issue is whether:

• The original petitioner continues to exist;
• The new entity is a successor in interest;
• The permanent job remains available;
• The new entity has assumed relevant immigration obligations;
• The employment position materially changed; and
• A new I-140 or portability request is required.

Successor-in-interest issues

In qualifying labor-certification-based cases, another employer may sometimes establish that it is a successor in interest to the original employer.

A successor analysis can involve whether the new entity has assumed the predecessor's rights, duties, obligations, and liabilities relating to the permanent employment opportunity.

Potential evidence includes:

• Merger agreements;
• Asset purchase agreements;
• Corporate resolutions;
• Assumption-of-liability provisions;
• Organizational records;
• Tax identification information;
• Evidence concerning continued business operations; and
• Evidence that the permanent position continues.

A successor case is legally different from ordinary §204(j) portability.

Layoff is not necessarily business termination

The employer can terminate the applicant's employment while remaining an operating business. That is different from termination of the petitioning employer's business under 8 C.F.R. §205.1.

The critical question becomes whether the employer has also rescinded the permanent immigration job offer.

An applicant may be:

• Laid off from current temporary employment while the employer still intends a future permanent job;
• Terminated from both current employment and the permanent offered position; or
• Transferred to another qualifying role with the same employer.

The actual employer intent should be documented.

Current employment and the permanent job offer are different

An employment-based immigrant petition frequently concerns prospective employment that will begin after the applicant becomes a lawful permanent resident.

Therefore, loss of present employment does not automatically mean the permanent job offer has ended.

For example, an employer might temporarily lay off an employee but continue to offer the permanent sponsored position when business conditions permit.

Conversely, an employer can continue employing the applicant temporarily while formally abandoning the future permanent job underlying the I-140.

What if the original employer cannot sign Supplement J?

If the employer has ceased operations, obtaining a new confirmation of the original job offer may be impossible—and logically the original job may no longer exist.

If the applicant is eligible for portability, a qualifying new employer completes the relevant employer portions of Supplement J instead.

If portability is not available, the inability to establish a continuing permanent offer can become a central obstacle to adjustment approval.

A new employer does not always need a new I-140

If INA §204(j) applies, the purpose of portability is to allow the qualifying original petition to remain valid with respect to a new same-or-similar permanent job.

Accordingly, the new employer generally does not file a replacement I-140 merely to make the §204(j) request.

If §204(j) is unavailable, however, the applicant may need a new employer-sponsored petition and may need to request a transfer of the pending I-485 to that new basis if legally permitted.

Transfer of underlying basis

An applicant who has another approved or pending immigrant petition may consider asking USCIS to transfer the pending adjustment application to that alternative basis.

That process is different from AC21 portability.

• Portability preserves a qualifying original I-140 while substituting a new employment offer.
• Transfer of underlying basis substitutes a different immigrant petition or category as the foundation for Form I-485.

See Transfer of Underlying Basis / Interfiling.

What if the employer closes during visa retrogression?

Employment-based applicants can remain in pending-I-485 status for extended periods when immigrant visa numbers retrogress.

The fact that USCIS cannot approve the case because of retrogression does not eliminate the job-offer requirement.

If the original employer closes during the wait, the applicant should determine whether §204(j) permits substitution of a qualifying new permanent job.

See Visa Retrogression After Filing Form I-485.

Priority date retention after employer closure

Loss of the ability to use one I-140 directly for adjustment does not necessarily mean loss of the employment priority date.

An applicant with a qualifying approved EB-1, EB-2, or EB-3 petition may often retain the earlier priority date for a later employment petition, subject to the regulatory exceptions.

See Priority Date Retention.

Derivative applicants

Derivative spouses and children generally depend on the principal applicant retaining a valid employment-based immigrant and adjustment basis.

If the principal successfully preserves the case through INA §204(j), qualifying derivatives can ordinarily continue with their associated Form I-485 applications.

If the principal loses the underlying basis entirely, derivative adjustment applications can also fail.

Build a precise employer-termination timeline

Evidence checklist

• Form I-140 receipt and approval notices.
• Form I-485 receipt notice.
• Original permanent job-offer documentation.
• Original Supplement J, if filed.
• Employer closure or termination notice.
• Layoff or termination communications.
• Corporate dissolution records.
• Bankruptcy documents if applicable.
• Merger or acquisition documents if the business was transferred rather than simply closed.
• Evidence concerning successor-in-interest issues.
• New permanent job offer.
• New Supplement J.
• Same-or-similar occupational evidence.
• Priority-date documentation.

Common employer-termination mistakes

Primary authorities

Related INA245.com guides

Frequently asked questions