As a result of the global pandemic, there was an unprecedented number of Employment-Based Adjustment of Status (AOS) applications filed in October and November 2020. Applicants who still have their applications pending are now starting to inquire about changing employers with AOS  pending and moving to find better opportunities in some cases. Many applicants who have filed their AOS in October 2020 may now be eligible to change employer, therefore the below gives a simple overview of the requirements for changing employer while AOS application is pending.

In 2000, Congress passed the American Competitiveness in the Twenty-First Century Act of 2000 (AC-21) making it possible for employment-based adjustment of status applicants to change their job or employer if there are delays in the I-485 adjustment of status process. If an applicant is eligible under AC-21, the I-140 form may remain valid, and the applicant may “port” (transfer) to a new job offer in the same or similar occupational field as the job for which the petition was originally filed. This is described as “portability.” Applicants who are eligible and who successfully use this process are deemed to have “ported” their I-140 petition to a new job offer. Before porting to another employer, the Applicant must be cognizant of the requirements for AC-21.

What are the requirements to qualify under AC-21?

There are a few requirements that will make an applicant eligible under AC-21 to port their job offers:

  • The applicant must be the beneficiary of an approved I-140 petition or a pending I-140 petition that is later approved.
  • The petition must be filed in the employment-based 1st, 2nd, or 3rd preference categories. The 1st preference category (E1) includes persons with extraordinary ability (in science, art, education, business, or athletics), outstanding professors and researchers, and multinational managers or executives. The 2nd preference category (E2) includes persons with an exceptional ability (in science, art, or business) and professionals with an advanced degree beyond their baccalaureate degree. The third preference category (E3) includes skilled workers, professionals, and unskilled workers.
  • The applicant’s I-485 form must have been pending with the U.S. Citizenship and Immigration Services (USCIS) for 180 days or more at the time the USCIS receives the request to port.
  • The new job must be in the same or similar occupational field as the previous job in the original I-140 petition, and the employer must have the actual intent to employ the beneficiary after their adjustment of status is completed.
  • Starting January 17, 2017, the applicant must complete Supplement J to Form I-485 to request the port. Supplement J will inform the USCIS of the employer’s actual intent to employ the applicant after their status is adjusted. With supplement J, the applicant will also have to submit a Notice of Action (Form I-797) to prove the I-485 has been pending for 180 days and that the applicant is the beneficiary of an approved or pending I-140 petition.

If the I-485 form has been pending for more than 180 days and the I-140 form has been approved, the I-140 form will remain approved unless its approval is later substantively revoked. If the I-485 application has not been pending for 180 days or more, an applicant’s request to port will be denied.

 

When Does the Countdown Start for 180 Days?

 The count down for the 180 days starts from the date USCIS list on the receipt notice of the I-485 as the Received Date. This date is the day an applicant properly filed an adjustment of status application with USCIS.

 

What is the  Purpose of I-485 Supplement J and the AC-21 Portability Process?

The purpose of I-485 Supplement J is to provide a confirmation of the bona fide job offer or to inform USCIS in I-485 porting cases under AC-21 (for pending I-485 cases). Form I-485 Supplement J is not required for I-485 applications that were filed with the I-140 petition.

 

What if the original job offer is withdrawn by the previous employer?

If the I-140 petition is withdrawn by the previous employer, the USCIS will issue an acknowledgment of their withdrawal request and will deny any corresponding adjustment applications. However, if the I-140 petition was approvable and the I-485 petition was pending for 180 days or more, the I-140 form may possibly remain eligible under AC-21 for the porting application. If the application does not meet the requirements under AC-21, however, the applicant must obtain a new employment-based petition to file a new adjustment of status application.

 

How will the USCIS determine if a job is the “same” or “similar?”

For a job to be in the “same” occupational field, the occupation must resemble the previous job in every relevant respect. The USCIS will decide if the jobs are identical, resemble one another in all relevant respects, or are in the same category. For a job to be in a “similar” occupational field, the occupation must share essential qualities with the previous job such that there is a marked resemblance or likeness between the two. When evaluating whether a job is the same or similar as the previous job, the USCIS will consider: job duties, job titles, required skills and experience, educational and training requirements, licenses or certifications that are required, offered salary or wages, the U.S. Department of Labor (DOL) code assigned to the jobs, and any other material and relevant evidence.

In conclusion, portability rules are complex. The above is just an overview of the process. It is imperative you contact an experienced immigration attorney before making a decision to transition to a new employer while your AOS is pending. The ILBSG team is here to guide you through each step.  Please feel free to reach out to us today.

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