Employment-based green card petition can be a long process. Applicants must start from PERM labor certification process unless the petition is filed under EB-1A, EB-2 NIW, or EB-5. Some applicants must wait before filing Form I-485 after Form I-140 (or Form I-526) was filed. In general, it will take months for USCIS to adjudicate the I-485 application.
During the waiting period, situation may change. An adjustment applicants might need to relocate or find new job opportunities. If that happens, can the applicants change jobs while the Form I-485 is pending? Will changing employers lead to a Form I-485 denial?
Job Portability – AC21
In principle, Form I-485 and its underlying Form I-140 are tied to a specific job offer of the petitioning employer. Therefore, applicants who change jobs will need a new Form I-140 filed by a new employer to adjust status.
However, if they satisfy conditions under the Immigration and Nationality Act (“INA”) section 204(j), adjustment applicants can change jobs and still use the Form I-140 filed by the previous employers to adjust status.
In 2000, AC21 (The American Competitiveness in the Twenty-First Century Act of 2000) added INA section 204(j). The purpose was to address delays in the employment-based adjustment of status process. It allows certain adjustment applicants experiencing such delays to change jobs or employers while their Form I-485 is pending.
That is, if adjustment applicants are eligible under INA 204(j), their Form I-140 (and underlying permanent labor certification, if applicable) remain valid despite job changes. Such applicants may transfer (or “port”) to a qualifying new job offer that is in the same or a similar occupational classification as the job offer for the Form I-140 petition (“job portability”).
The new job offer may be from the same or a new employer including self-employment. Such adjustment applicants who successfully “port” the underlying Form I-140 petition to a new job or employer retains the priority date of the underlying Form I-140 petition.
Job Portability Requirements
To qualify for a job portability, the adjustment applicant must meet the following requirements:
- The applicant is the beneficiary of an approved Form I-140 petition or of a pending petition that is ultimately approved;
- The petitioner filed the Form I-140 in the employment-based preference category (EB-1, EB-2, or EB-3 except EB-1A and EB-2 NIW)*;
- The applicant’s Form I-485 application has been pending with USCIS for 180 days or more at the time USCIS receives the request to port;
- The new job offer through which the applicant seeks to adjust status is in the same or similar occupational classification as the job specified in the Form I-140 filed by the previous employer; and
- The applicant submitted a request to port (Form I-485 Supplement J: Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j)) to USCIS.
*Portability is not applicable to adjustment applicants whose approved Form I-140 petitions are based on EB-1A (classification as an individual with extraordinary ability) or EB-2 NIW (whom USCIS has waived the job offer and labor certification requirements in the national interest). These applicants are not eligible for AC21 portability and are permitted to change employers, including becoming self-employed.
Approved Form I-140 Requirement & Exceptions
As mentioned, to be eligible for a job portability, adjustment applicants must have an approved Form I-140 or a pending Form I-140 petition that is ultimately approved.
Accordingly, USCIS will in principle deny the job portability if the following events occur before or after the approval of Form I-140 petition:
1. USCIS revokes an approved Form I-140 petition
If USCIS revokes the approval of the Form I-140, the adjustment applicant is not eligible for the job portability provisions.
2. USCIS receives a request from a petitioner to withdraw a pending Form I-140 petition
However, if the pending Form I-140 petition is approvable and the Form I-485 has been pending for 180 days or more:
- The Form I-140 may remain valid for priority date retention; and
- The adjustment applicant may be also eligible for job portability for the adjustment application. If the Form I-140 is subsequently approved, it remains valid unless USCIS revokes the approval under substantive grounds.
3. USCIS receives a request from a petitioner to withdraw an approved Form I-140 petition
However, if USCIS receives a withdrawal request from a petitioner (a) 180 days or more after the approval of the Form I-140 petition or (b) while a Form I-485 adjustment application has been pending for 180 days or more:
- The I-140 petition remains valid for priority date retention; and
- The adjustment applicant may be also eligible for job portability for the adjustment application (unless USCIS revokes the approval of the petition under substantive grounds) if the applicant satisfies all the requirements to port based on a new same or similar position and the adjustment application has been pending 180 days or more at the time of withdrawal.
4. The petitioner’s business terminates while the Form I-140 petition is pending
However, if the Form I-140 petition has been approvable until the Form I-485 application has been pending for 180 days or more:
- The Form I-140 petition remains valid for priority date retention; and
- The adjustment applicant might be eligible for job portability. If the Form I-140 petition is subsequently approved, it remains valid unless USCIS revokes the approval under substantive grounds.
5. The petitioner’s business terminates after the approval of the Form I-140 petition
However, if the business terminates (a) 180 days or more after the approval of the Form I-140 petition or (b) while a Form I-485 adjustment application has been pending for 180 days or more:
- The Form I-140 petition may remain valid for priority date retention; and
- The adjustment applicant may be eligible for job portability for the adjustment application (unless USCIS revokes the approval of the petition under substantive grounds) if the applicant satisfies all the requirements to port based on a new same or similar position and the Form I-485 application has been pending 180 or more days when the business terminated.
How to Make a Portability Request
Adjustment applicants can submit the portability request by filing Form I-485, Supplement J with USCIS.
Adjustment applicants can request the portability after the Form I-485 has been pending 180 days. This include during an adjustment interview or in response to a notice sent by USCIS (i.e., Request for Evidence) following a request to withdraw the Form I-140 petition.
In applying for the portability, the applicant should submit the following documents as well:
- Form I-797 (Notice of Action) showing the receipt date of the Form I-485 application; and
- Form I-797 (Notice of Action) showing that the applicant is the principal beneficiary of an approved or still pending Form I-140 petition.
USCIS Adjudication
In adjudicating the portability request, USCIS reviews the circumstances as a whole to determine if the new job offer is in the same or similar occupational classification as the job listed in the previous Form I-140.
If USCIS determines that the new job offer does not meet the requirement, USCIS will deny the adjustment application. In that case, the adjustment applicants need to have their new employers file a new Form I-140 on their behalf or self-petition to apply for an adjustment of status.
For more details, USCIS’s relevant webpage is here.
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