Concerns about backlogs in the processing of adjustment of status applications (I-485) led Congress to enact the American Competitiveness in the 21st Century Act of 2000 (AC21).
This law provides that an I-485 application based on first preference (EB-1), second preference (EB-2) or third preference (EB-3) employment-based petition (I-140) that has been filed and remain unadjudicated for 180 days or more shall remain valid even if the applicant changes jobs or employers.
The new job must be in the same or similar occupational classification as the job for which the petition was filed.
The request to change employment must be communicated by the beneficiary or his/her representative to the USCIS by submitting a letter from the new employer stating the job title and duties, the minimum requirements of the job, the date the alien began or will begin employment and the offered salary.
In determining whether the old and the new jobs are the same or similar, the USCIS will consider the description of the job duties. A difference in the wages is not a ground for denying the adjustment application as long as the discrepancy is not substantial. Geographic location of the new employment is not relevant in the determination.
The alien applicant may change or port to self employment provided the new employment is the same or similar. But the intent of the alien and the employer is a relevant factor.
The employer must have had the intent to employ the beneficiary at the time of the filing of the I-140 and I-485 and the alien must have intended to work for the employer upon his/her adjustment of status.
Multinational managers or executives may also port even to an unrelated company provided the job duties of the old and new jobs are the same or similar.
It is not required that the alien has been working for the petitioner while the I-140 and I-485 are pending. If he/she is working for the petitioner, he/she is not prohibited from leaving before the I-485 has been pending for 180 days.
Porting may be requested even if the I-140 which was concurrently filed with the I-485 is still pending. But the I-140 must have been approvable when it was filed. This means that there was a valid job offer and that the alien was eligible for the employment preference classification. The I-140 petition must be approved before portability is granted.
If the I-140 petition is withdrawn before the 180-day period, porting is not allowed. The I-140 is also not valid for porting if it is denied or revoked at any time except when the revocation is due to the withdrawal of the petitioner after the 180-day period.
But in a recent case, porting was not allowed even though the withdrawal of the I-140 petition occurred after the I-485 application was pending for more than 180 days. The applicant in this case was the beneficiary of a labor certification which became the basis for the filing and approval of the I-140 petition. Before the applicant could adjust status, the petitioner withdrew the I-140 petition and requested to substitute a new alien into the proffered position using the applicant’s original labor certification.
On the basis of the withdrawal, the USCIS automatically revoked the I-140 petition, approved the I-140 petition of the substituted alien as well as the adjustment of status. The District Director held that although the adjustment application had been pending for more than 180 days the applicant was ineligible to adjust as there was no longer a valid labor certification. This denial was affirmed by the Administrative Appeals Office.