LEGAL GUIDE
Written by attorney Andrew Wilson | Nov 15, 2010

I-485 Adjustment of Status Portability Under AC21

I-485 adjustment of status portability allows a foreign national to continue on with the green card process through a new U.S. entity wishing to offer a permanent position in the same or similar occupational classification as what is listed in the current green card paperwork. This allows for the green card to be approved through a new employer and new permanent position offer.

The Law Behind I-485 Portability

INA 204(j) provides that:

a petitioner under subsection (a)(1)(D) 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.

USCIS guidance under the applicable provision of the Adjudicator's Field Manual at Chapter 20.2(c) (AFM Chapter 20.2(c)) reads:

Pursuant to the provisions of section 106(c) of the American Competitiveness in the Twenty-First Century Act (AC21), Public Law 106-313, the approval of a Form I-140 employment-based (EB) immigrant petition shall remain valid when an alien changes jobs, if:

  • A Form I-485, Application to Adjust Status, on the basis of the EB immigrant petition has been filed and remained unadjudicated for 180 days or more; and
  • The new job is in the same or similar occupational classification as the job for which the certification or approval was initially made.

Guidance from CIS on 485 Portability

There have been many questions and issues surrounding I-485 eligibility. Interim guidance on these issues was provided in an Interoffice Memorandum (HQPRD70/6.2.8-P) dated December 27, 2005 from Michael Aytes, Acting Director of Domestic Operations. The Memo provides clarification on the factors that USCIS considers when determining a "same or similar occupational classification" for purposes of I-140 portability.

"Same or Similar" Occupational Classification

When making a determination if the new employment is in the "same or similar" occupational classification in comparison to the employment in the initial I-140, adjudicators should consider the following factors:

Description of the job duties contained in the ETA 750A or the initial I-140 and the job duties of the new employment to determine if they are the "same or similar" occupational classification.

The DOT code and/or SOC code assigned to the initial I-140 employment for petitions that have a certified ETA 750A or consider what DOT and/or SOC code is appropriate for the position for an initial I-140 that did not require a certified ETA 750A. Then consider the DOT code and/or SOC code, whichever is appropriate for the new position to make a determination of "same or similar" occupational classification.

A substantial discrepancy between the previous and the new wage.

Please note job location/geography should not be relevant for I-485 portability eligibility.

Important Issues to Consider in 485 Portability Cases

One important issue is to maintain H-1B or H-4 status whenever possible when you have 485 paperwork pending. If there is a problem or denial with the 485 filing, you are still authorized to remain in the U.S. in H-1B or H-4 status to address that denial.

In general, I also feel it is important to affirmatively file I-485 paperwork with CIS rather than wait for an RFE or Intent to Deny letter. This is partuclarly true when an RFE or Intent to Deny letter could be triggered by the former employer withdrawing an H-1B or I-140 approval with CIS.

Next, an individual should be aware that filing I-485 portability paperwork can lead to an interview a local CIS office. This does not necessarily mean there is a problem with the I-485 portability request, but the individual should be prepared for this possible interview.

Lastly, remember that there is an AR-11 requirement whenever a person moves to a new residence.

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