Switching Employers in a Working World: American Immigrants and the Revocation Notice Problem

Abstract

A current tension in U.S. employment immigration law involves the notice requirements for prospective permanent residency—”green card”—applicants. Foreign workers oftentimes do not receive their green cards for more than ten years after beginning the permanent residency process. For almost four decades after the first major employment immigration legislation was passed in 1965, green card applicants were unable to change employers during this extremely long process without abandoning their applications. In 2000, Congress sought to remedy the problem by passing legislation allowing foreign workers to change employers without sacrificing progress on their green cards. This legislation, however, created a massive gap in the process which remains to this day: currently, if a foreign worker changes employers after beginning her green card application, neither the worker nor her new employer is legally entitled to notice if anything goes wrong with the underlying petition. More specifically, if the government finds error in the green card petition and seeks to revoke it, the government is not obligated to provide revocation notice to the foreign national or to her new employer. Revoking a green card petition does not merely jeopardize a worker’s permanent residency application; it could also jeopardize her entire underlying status and could force her to abruptly leave the country. The immigration agency issued a policy memo in 2017 partially addressing the problem by granting the worker temporary standing during her proceedings. The memo is an insufficient solution to the problem, however, because it may be withdrawn or superseded at any time. Because the revocation notice problem presents an immediate and dire threat to the immigration status of potentially every foreign worker who switches jobs during her green card process, this Note advocates for both immediate administrative—as well as long-term congressional—permanent reforms to the relevant statutes and regulations governing this system.