What is the 180-Day Portability Rule?
The 180-Day Portability Rule allows an applicant with an immigrant visa status to change his or her employment (job) without compromising their application for adjustment of status provided they find permanent employment with another organization in the same occupational classification as the job under which the initial I-140 petition was filed and has been pending for 180 days or longer.
The USCIS will require a letter from the new employer to confirm that an offer of permanent employment exists prior to granting the application for status adjustment. Along with the salary, the letter must include a description of the position. On the basis of this letter, the USCIS will assess whether the position satisfies the ‘same or a similar set of occupational standards.’
Eligibility Requirements
An immigrant who qualifies for application of the 180-Day Portability Rule must meet all the following requirements:
1.The applicant must possess an approved I-140. This is a form that indicates that the applicant is qualified for the employment sought and that there is a lack of an adequate number of citizens available for the job. It is essential to note that the I- 140 is approved and not pending before an attempt to change employment is made.
2.The applicant’s application for I-485 adjustment of status must be pending for a minimum of 180 days.
3.The applicant must have obtained a job that falls within the ambit of the ‘same or similar occupational classification’ as that of their previous position. Interpretation of the term ‘similar’ can be subjective and so it is necessary to ascertain whether the job classifications provided by the department apply to the applicant’s occupation.
4.The applicant must submit a Confirmation of a Bonafide Job Offer or Request for Job Portability Under INA Section 204(J) (Form |-485 Supplement J) if the request to port is made on or after January 17, 2017. Since Form 1-485 Supplement J did not become effective until January 17, 2017, if the applicant wanted to port before that date, they might well have done so in writing.
FAQ's on 180-Day Portability Rule
Q1. Which date rules the 180-day period, the receipt date or the notice date?
A: The 180-day period is governed by the receipt date, that is, the date on which the USCIS received the case. It should not be confused with the date on which the USCIS generates the receipt notice.
Q2. If an applicant lost their job before the 180-day point, can they still use portability?
A: The applicant must possess an approved I-140 till their I-485 reaches the 180-day period. If the applicant’s I-140 is not authorized, then reliance can be placed on American Competitiveness in the 21st Century Act (AC21) modernized immigration laws pertaining to foreign workers in the United States. AC21 greatly enhances H-1B visa and Form I-140 portability, allowing foreign workers in certain situations the flexibility to change employers.
The best recourse here would be to approach an immigration attorney. As a backup, the applicant can also file for a new green card.
Q3. Can the applicant use portability for a future job offer?
A: Yes, one potentially could do this, but it could raise questions of whether the initial job offer from the labor certification-sponsored employer was valid or Bonafide. Using AC21 to move to a different job after presenting a case as a potential employment offer but not working for the sponsor can raise questions about intent and the possibility of fraud or deception. Employment-based green card applications are all based on the concept of a future job offer.
Q4. Does the applicant’s sponsoring employer need to withdraw their I-140 or notify USCIS if they change jobs?
A: No, there is no such requirement. Post-July 16, 2007, it is no longer possible to file labour certification substitution cases. Prior to this change, employers were required to substitute the original beneficiary with a new beneficiary in the event of a job change.
Q5. If the applicants change jobs, does the new employer have to pay the wage stated on the labor certification?
A: No. This was outlined in the original Interim Guidance Memo from June 2001 and reaffirmed in the Yates Memo from May 2005. The wage is to be reviewed only to the extent that a discrepancy in the wage may reflect upon whether the new job is in a job category that is the same or similar category. The wage is relevant to demonstrating that the individual will be self-supporting and will not become a “public charge.”
Pay rates can depend heavily upon the location of the job, the size of the company, whether it is a public or private sector, the benefits package, bonuses given, the health of the economy, and many other factors. However, the USCIS has noted that a wide range in income or salary may imply that the job responsibilities are not the same, which may be problematic in some circumstances.
Q6. Are there any limitations on using AC21 for multiple job changes?
A: No, there are no limitations on using AC21 for multiple job changes. Due to retrogression, an I-485 applicant would have to experience years of waiting for the visa number, and it is likely that the applicant would want to undergo more than one job change. AC21 facilitates such multiple job changes.
Conclusion
Many recent applicants are anxiously counting the days from the filing of their I-485s, awaiting AC21 eligibility. Some employers may experience the loss of valuable employees; other employers, perhaps offering better employment terms and conditions, may find that they are able to hire needed foreign workers without having to sponsor their green cards.
