Portability During Adjustment Of Status
The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) for the very first time introduced the novel concept of "portability,"which allowed applicants for adjustment of status to change jobs or employers in the same or similar occupational classification after their applications were pending for 180 days.
Filing an adjustment of status application (Form I-485) is the final step before the grant of lawful permanent residency, after an employer has filed a labor certification and immigrant visa petition (Form I-140). This article will focus on new interpretations on portability, as enunciated in a recent memo from Mr. William R. Yates, Associate Director for Operations, United States Citizenship and Immigration Services (USCIS) dated May 12, 2005.
Specifically, Section 106(c) of AC21, as codified in Section 204(j) of the Immigration and Nationality Act (INA) provides:
“Job Flexibility for Long Delayed Applicants for Adjustment of Status to Permanent Residence - A petition under subsection (a)(1)(D) [re-designated as subsection 204(a)(1)(F)] for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.”
This provision allows an applicant for adjustment of status to change job or employers after his or her application has been pending for more than 180 days and still be able to continue to process the application for permanent residency. The underlying labor certification and immigrant visa petition (Form I-140), filed by the original employer, would still remain valid even though the applicant moves to a new employer and is no longer supported by the original sponsoring employer. INA § 204(j) also allows one to exercise portability with the same employer. Thus, if the person changes jobs within the same employer so long as it is within the same or similar occupation, the underlying labor certification application and I-140 petition would continue to remain valid. INA § 204(j) therefore allows people whose adjustment applications are pending for more than 180 days to enjoy career mobility within the same employer, such as promotions, even though the labor certification or I-140 petition did not contemplate it.
At the time of the enactment of AC21, there had to be an approved Form I-140 petition before the filing of the adjustment of status application. On July 31, 2002, however, a new interim rule was promulgated, which allowed the concurrent filing of both Form I-140 and Form I-485 applications. Until the issuance of the new memo, practitioners grappled with whether an alien could exercise portability even though the I-140 petition had not been approved, although the concurrently filed I-485 application had been pending for more than 180 days.
An earlier memo from William Yates did not address the issue squarely. In fact, the previous memo from Mr. Yates seemed to suggest that an I-140 needed to be approved at the time the alien wished to exercise portability in the context of concurrently filed I-140 and I-485 applications.
The most recent memo from Mr. Yates now confirms that an alien can still port off an approved I-140 and I-485 that has been pending for 180 days or more. Mr. Yates’ instruction to USCIS adjudicators pertaining to portability while the I-140 is still unapproved is worth noting:
“A. Review the pending I-140 petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within 180 days. If the petition is approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on it’s merits. Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I-140 portability purposes.
B. If additional evidence is necessary to resolve a material post-filing issue such as ability to pay, an RFE can be sent to try to resolve the issue. When a response is received, and if the petition is approvable, follow the procedures in part A above.”
Individuals who wish to exercise portability while the I-140 petition is still not approved should still exercise a great deal of caution.
Typically, the I-140 petition is filed by the sponsoring employer. Upon porting, the alien may lose contact with the employer. If the employer revokes the I-140 petition within 180 days of the pendency of the I-485 application, the alien loses the portability option. Even if the I-140 is not withdrawn, USCIS could still issue a Request For Evidence (RFE) seeking clarification on the initial evidence required for each petition. If the alien has already ported to a new employer, the original employer may be unwilling or unable to provide that evidence to support the RFE. It is hoped that USCIS issues the RFE on the I-140 to the alien who has ported, especially is the issues pertaining to eligibility could be answered by the alien without the assistance of the original employer.
What is also extremely confusing is that the memo instructs adjudicators to approve an I-140 petition that is approvable “but for an ability to pay issue or any other issue relating to a time after the filing of the petition.” This makes sense because there is no requirement for the new employer after the alien has ported to establish its ability to pay the proffered wage. Although the original sponsoring employer must prove the ability to pay (on the date that the priority date is established) but is not required to actually pay the offered wage until many years later, it does not appear that a beneficiary who has ported on an unapproved I-140 has to resolve an ability to pay issue. This logic, regarding the irrelevance of the employer’s ability to pay, could be extended to an alien porting to a different job within the same employer.
Unfortunately, Part B of Mr. Yates’ answer contradicts the instructions in Part A. Part B goes on to state: “If additional evidence is necessary to resolve a material post-filing issue such as ability to pay, an RFE can be sent to try to resolve the issue.” Thus, the original employer may still not be let off the hook with regard to ability to pay, although the alien may have ported to a new employer. It is hoped, despite the instructions in Part B, that adjudicators will issue RFEs only in very exceptional cases, such as when the ability to pay is essential in determining whether the job being offered in the labor certification or I-140 was bona fide.
Mr. Yates’ memo makes other observations that are consistent with INA § 204(j). With regard to what constitutes the “same or similar” occupational classification for purposes of portability, adjudicators are advised to consider the description of the job duties on the labor certification or the initial I-140 petition and the job duties of the new employment. The memo advises adjudicators to refer to the DOT/SOC code assigned to the initial I-140 employment for petitions that have a certified labor certification or consider what DOT or SOC code is appropriate for the position for an initial I-140 that did not required a certified labor certification. Adjudicators are then required to consider the appropriate DOT/SOC code for the new position in order to make a proper determination of “same or similar” occupational classification.
It is hoped that adjudicators would still be able to exercise flexibility even though the code of the new occupation does not match with the code of the old occupation. For instance, the SOC/O*NET code for a physicist is 19-2012.00. If this physicist, who was sponsored as a research scientist, now takes up new employment of a physics teacher in a post-secondary institution, the SOC/O*NET code for a physics teacher is 25-1054.00. Even though the codes for the two jobs are different, the underlying duties of both the jobs are similar, including the skills and knowledge required to perform them, and this individual should still be able to exercise portability under INA § 204(j).
Interestingly, the memo also advises that although a difference in the wage offer on the approved labor certification or I-140 and the new employment cannot be used as a basis of denial, a substantial discrepancy between the previous and the new wage may be taken into consideration as a factor in determining if the new employment is “same or similar.” It is possible, however, for one to work in a “same or similar” occupation even if there is a substantial discrepancy in the wage. A CEO of a Fortune 100 corporation may be paid several million of dollars each year. The CEO of a start-up could make much less, say $50,000 per annum. One should be able to successfully argue that the CEO of a start-up is in a “same or similar” job to the CEO of a Fortune 100 corporation.
The memo states that the fact that the geographical location of the employment in the approved labor certification has changed after the alien has ported should not make a difference. The relevant inquiry is if the new position is the same or similar classification to the original job that was the subject of labor certification or I-140 sponsorship.
The memo also confirms that portability applies to managers or executives classifiable under INA § 203(b)(1)(C). Thus, a person who is sponsored as a multi-national manager through a company that has a qualifying relationship with an overseas entity pursuant to INA § 203(b)(1)(C) can avail of AC21 portability if he/she changed to a “same or similar” job to an unrelated company.
Because INA § 204(j) allows for an individual to change “job(s) or employers” the memo confirms that an alien can also port to self-employment. This is possible as long as the new employment is in a “same or similar” occupational classification as the original job. The memo advises adjudicators to confirm that the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues.
The memo clarifies a burning issue with respect to intent of the employer and the alien beneficiary. As a background, every employer who files a labor certification or I-140 petition must have a genuine intention to employ the alien after he/she receives permanent residence. Correspondingly, the alien must also intend to undertake the employment upon the grant of permanent residency. There is no requirement for actual current employment. The basis for employment-based immigration is prospective employment.
Thus, the memo advises that this intent must exist at the time the I-140 was filed and at the time of filing the I-485, if the latter was not filed concurrently. The memo cautions that adjudicators should not presume absence of such intent, and they may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be required. Thus, an alien can exercise portability even if he/she left the original employment before the 180 day period or never worked at all, so long as the requisite intent was established at the time of filing the I-140 and I-485.
The alien must be able to establish portability at the time of adjudication of the adjustment application. The memo specifically prohibits an alien from looking for “same or similar” employment at this stage of the process. Indeed, the alien must be able to show there exists a new valid offer of employment at the time the I-485 is adjudicated.
The fact that employment-based preference numbers have retrogressed while the I-485 application is pending does not prevent portability eligibility. The priority date continues to be determined at the time of the initial labor certification filing with the DOL or at the time the initial immigrant visa is filed with the USCIS (in cases where no labor certification is required).
Finally, an I-140 petition is no longer valid for porting purposes if the I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.
1Public Law 106-313.
2 (HQPRD 70/6.2.8-P). This memo also refers to H-1B portability and seventh year H-1B filings, which will be discussed in a subsequent article.
3 This provision refers to INA § 203(b)(1)(B) (Outstanding Professors and Researchers), 203(b)(1)(C) (Multinational Executives/Managers), § 203(b)(2) (Aliens who are members of the professions holding advanced degrees or with exceptional ability) and § 203(b)(3) (skilled workers, professionals, and other workers). Not all categories require a labor certification to precede the filing of the I-140 petition. For instance, the Outstanding Professor and Researcher and Multinational Executives/Managers category do not require labor certification. Nor do petitioners under the advance degree/exceptional category require a labor certification if the I-140 petition is being filed as a “national interest waiver.”
4 8 C.F.R. § 245.2(i).
5 Yates, “Continuing Validity of Form I-140 Petition in accordance with Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21)” (AD03-16), HQBCIS 70/6.2.8-P (August 4, 2003).
6 For a full commentary, See Mehta, New Interpretation on Job Flexibility During Adjustment of Status, www.cyrusmehta.com.
7 Note that INA § 204(j) does not cover an Extraordinary Ability petition pursuant to INA § 203(b)(1)(A) as this category does not require a job offer or employer and the alien can also self-petition. A “national interest waiver” of the job offer requirement pursuant to INA § 203(b)(2) also does not require an employer to file the I-140 petition, but a petition filed under this provision, even as a national interest waiver, is covered under INA § 204(j). One should argue that INA § 204(j) should allow one to port to a new employer even though the new job is no longer in the national interest. Conversely, if the alien is unable to move to a “same or similar” occupation, and thus unable to port, but is still working in the national interest, the petition should still be considered valid despite the inapplicability of portability.
8 8 C.F.R. § 204.5(g)(1) sets forth the basis for initial supporting documents for different I-140 petitions. Typically, the I-140 petition must demonstrate that the alien was qualified for the job stated on the labor certification and had the requisite education and work experience.
9 8 C.F.R. § 204.5(g)(2) provides that any I-140 petition that requires an offer of employment to be accompanied by evidence that the prospective employer has the ability to pay a proffered wage, and must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence.
10 DOT refers to the Department of Labor’s Dictionary of Occupational Titles. The DOT has been replaced by O*NET (www.onetcenter.org), which incorporates the DOL’s Specific Occupational Codes (SOC).
This article originally appeared on http://www.cyrusmehta.com/.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is the Chair of the Board of Trustees of the American Immigration Law Foundation (AILF) and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York (ABCNY) and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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