Foreign nationals with pending adjustment of status applications (Form I-485) based on a first preference, second preference, or third preference employment-based immigrant visa petition (EB1, EB2 or EB3) may change jobs or employers subject to certain eligibility requirements.
To be eligible to change or port from one job to another under the portability rule also referred to as the job flexibility provision of the American Competitiveness in the 21st Century Act of 2000 (AC21), the beneficiary’s adjustment of status application must have been pending for 180 days or more and the new job must be in the same or similar occupational classification as the job for which the petition was filed.
Also, the Form I-140, Immigrant Petition for Alien Worker, must have been approved or is approvable when concurrently filed with the adjustment application. There must be a valid job offer and the beneficiary must be eligible for the employment preference classification.
In determining whether the new job is in the same or similar occupational classification as the employment in the initial I-140 petition, the USCIS will compare a number of factors and assess the totality of the circumstances. One of the factors considered is the job duties as indicated in the I-140 petition and the job description of the new employment. Another is the wage associated with each position.
Also considered is the Standard Occupations Classification (SOC) code for the job in the initial I-140 petition and the appropriate SOC code for the new job. The SOC system is used by the Department of Labor to group and classify jobs. Occupations are categorized on the basis of type of worked performed as well as the skills, education, and training required to perform the job.
In analyzing whether the jobs match, the USCIS does not necessarily match any particular order of digits in the SOC codes.
If both the I-140 petition and the I-1485 application remain pending for more than 180 days, the beneficiary is not automatically entitled to port. The USCIS must first determine whether the initial I-140 petition is approvable. If USCIS finds that it is, then it will adjudicate the adjustment of status application to determine whether the new position is in the same or similar occupational classification. The I-140 petition must be approved before portability is granted.
If the I-140 petition is subsequently denied, the beneficiary cannot invoke the portability rule.
The USCIS adopted the decision of the Administrative Appeals Office (AAO) in Matter of Al Wazzan relating to the portability rule as it applies to denied I-140 petitions.
In that case, the applicant insisted that he was entitled to port under AC21 based on his new job offer because his I-485 application had been pending for more than 180 days at the time USCIS denied his application. The I-140 petition filed on his behalf was denied by the USCIS on the ground that the applicant was not entitled to the employment classification sought.
The AAO held that the portability rule cannot apply where the I-140 petition is not valid. A denied I-140 petition cannot be considered valid regardless of whether the petition was adjudicated 180 days or more after the filing of the adjustment of status application.
An I-140 petition is considered valid if filed on behalf of an alien entitled to the employment classification sought. Put simply, the portability rule cannot apply where there was never a valid petition from which to port.