How long does an employee have to stay with a petitioning employer
after receiving permanent residency through labor certification?
There is no explicit length
of time that a foreign national has to stay with his employer after
receiving permanent residency. In Matter of Marcoux, 12 I&N Dec.
827 (BIA 1968), the Board of Immigration Appeals examined this
issue. There, after only five days, a foreign national quit a job
for which he received labor certification because he intensely
disliked the job. He subsequently found a job he liked that paid a higher wage.
Opposing counsel argued that the alien should be required to leave
and submit a new labor certification application for the new job.
BIA rejected this argument instead focusing on the intent of the
foreign national when he obtained permanent residence. The BIA
determined that at the time of obtaining permanent residence, the
foreign national intended to be employed in the first job
indefinitely and possessed no fraudulent intent. He did not intend to enter the U.S. under guise of accepting
employment with the first company to seek employment with another
recent beneficiaries of permanent residency need not be concerned
about satisfying a specific number of months or years prior to
obtaining a job with another company. The more important issue is
whether the individual intended to work indefinitely for the company
for which he received labor certification. Nonetheless, time will
have an impact on this issue because the INS will examine the
overall length of time that the foreign national stayed with the
first employer before seeking employment elsewhere. This
circumstantial evidence is viewed as a reflection of his intent at
the time of receiving permanent residency. A
person who stays for a short period of time with his sponsoring
employer after receiving permanent residency will have a harder time
convincing the INS that he held the requisite indefinite intent.