180 Day Portability Rule: Clearing Up Common Misconceptions
In November, I spoke at an immigration law seminar given by the Practising Law Institute in San Francisco. My topic was the "180 Day Portability" rule, also known as §106(c) of the American Competitiveness in the 21st Century Act (AC-21).
Although the rule is only two sentences long and is stated in simple English, employers and employees alike remain confused as to its meaning.
The law states that both labor certifications and employment-based visa petitions remain valid with respect to a "new job" where the INS fails to adjudicate an application for adjustment of status within 180 days "if the new job is in the same or a similar occupation as the job for which the "petition was approved" or the "(labor) certification was issued."
This seems simple, doesn't it? Of course, since there are currently no INS regulations interpreting the statute, reasonable minds may disagree about what the phrase "same or similar occupation" means. What if a software engineer becomes a senior software engineer? Not much of a stretch. However, if she becomes the VP for Software Operations, her attorney may have to do battle with the government to get her adjustment application approved.
A lot of people get confused when there is a change of
Others are confused about whether the rule applies where the applicant changes jobs before the 180-day period has elapsed. Again, the operation of the new rule is not affected by such changes. If an applicant for adjustment of status changes jobs 60 days into the 180-day period, she is home free as long as the INS takes over 180 days to decide the application.
The statute provides that the job offer is prospective only. However, case law imposes an "intent" requirement: An applicant must, at the time that an application for adjustment of status is submitted, have the intent to work for the petitioning employer indefinitely. If the applicant quits to work at a higher-paying job two days after the adjustment application is filed, the INS may seek to deny the application arguing that the applicant lacked the requisite intent at the time that the application was submitted. However, some people think that the rule requires the applicant to work for the petitioning employer for 180 days after the I-485 is submitted. It clearly does not.
INS's Policy Memorandum regarding AC-21, dated June 19, 2001, provides, on page eight, that "adjudicators shall not deny applications for adjustment of status on the basis that the alien has changed jobs. Under present practices, it is expected that an I-485 applicant notify the Service when they no longer intend to enter into employment with the employer who sponsored them on the I-140 petition. The Service should continue to expect the applicant to submit a letter to the INS of this change of intent... The Service should request a letter of employment from the new employer..."
In practice, an applicant who changes jobs after the I-485 has been submitted should send both letters to the INS by certified mail.
About The Author
Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California