The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) introduced INA 204(j), which allows certain employment-based adjustment of status applicants to change jobs or employers while their Form I-485 is pending. This provision, known as “portability,” permits beneficiaries of approved employment-based immigrant visa petitions in the 1st, 2nd, or 3rd preference category to transfer to a new job in the same or similar occupation as the original job offer. The new job offer can be with the same or a different employer, and the applicant retains the priority date of the underlying petition.
For general considerations when filing Form I-140 review this article.
In general, I-140 filings, especially ones requiring underlying PERM certification, as well as the corresponding portability provisions are a bureaucratic maze of laws and regulations. Readers are advised to take special care and consult with an experienced attorney prior to filing any documents with USCIS. The following information is current as of the date of writing and should be considered legal advice. Note that U.S. DOL And USCIS requirements change from time to time, for case-specific counsel please contact our office.
Requirements for Portability
To be eligible for portability under INA 204(j), the applicant must fulfill the following conditions:
a) The applicant must be the beneficiary of an approved Form I-140 petition or have a pending petition that is ultimately approved.
b) The petition should fall under the employment-based 1st, 2nd, or 3rd preference category.
c) The applicant’s Form I-485 adjustment application must have been pending with USCIS for at least 180 days at the time the portability request is received by USCIS.
d) The new job offer, through which the applicant intends to adjust their status, should be in the same or a similar occupational category as the job mentioned in the original petition.
e) The applicant must submit a formal request to port to a new job. If the request is made on or after January 17, 2017, the applicant needs to submit the “Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j)” (using Form I-485 Supplement J). If the portability request was made before January 17, 2017, applicants could have used a letter for this purpose as Form I-485 Supplement J was not in effect until that date.
The new job offer can be with the same petitioner or a completely different employer. In certain circumstances. Applicants have the option to submit the portability request and related evidence along with their adjustment application or provide them during in-person interviews or in response to a request or notice from USCIS.
If the USCIS approves an applicant’s Form I-140 petition and their adjustment application remains pending for 180 days or more, the approved petition remains valid, allowing the applicant to change jobs or employers as long as the new job offer is in the same or a similar occupation.
However, if the adjustment application has been pending for less than 180 days, the approved petition is not valid for a new job offer. The validity of the petition is dependent on it being filed on behalf of a noncitizen eligible for the employment-based classification at the time of filing. If USCIS later revokes the approval of the petition, the applicant loses eligibility for job flexibility under Section 106(c) of AC21. In all cases, the offer of employment must be genuine, and the employer must have had the intention to employ the beneficiary upon approval of the petition.
An unadjudicated petition is not valid merely because the petition was filed with USCIS or through the passage of 180 days. Rather, the petition must have been filed on behalf of a noncitizen who was entitled to the employment-based classification at the time that the petition was filed, and therefore must be approved prior to a favorable determination on a portability request. If at any time USCIS revokes approval of the I-140 petition, the applicant is not eligible for the job flexibility provisions of Section 106(c) of AC21.
In revocation cases, the officer adjudicating the adjustment application may deny the adjustment application and Supplement J request. In all cases, an offer of employment must have been bona fide and the employer must have had the intent (at the time the petition was approved) to employ the beneficiary upon adjustment.USCIS, July 2023 (emphasis added)
Withdrawal of Form I-140 Petition while I-485 has been pending for 180 days or more:
Generally, if a petitioner requests to withdraw a pending Form I-140 petition, USCIS acknowledges the withdrawal and denies any related adjustment application. However, if the pending petition is approvable and the adjustment application has been pending for 180 days or more, the petition may remain valid for priority date retention and potential eligibility under INA 204(j) for the adjustment application (even if withdrawn by the employer).
Withdrawal of Form I-140 Petition when I-485 has been pending for less than 180 days or has not been filed.
If a petitioner requests to withdraw an approved petition that has been approved for less than 180 days and the corresponding adjustment application has not been pending for at least 180 days or has not been filed, USCIS automatically revokes the petition’s approval.
But if the withdrawal request occurs 180 days or more after the I-140 petition’s approval, or if the adjustment application has been pending for 180 days or more, the petition remains valid for priority date retention. The applicant may be eligible under INA 204(j) for the adjustment application (unless USCIS revokes the petition’s approval based on substantive grounds) if they meet all requirements for porting to a new same or similar position and the adjustment application has been pending for 180 days or more at the time of withdrawal.
End of Original Petitioner’s Business
Generally, if a Form I-140 petitioner’s business terminates before USCIS approves the petition, both the petition and any corresponding adjustment application are denied. However, if the petition was approvable at the time of filing and remained approvable for 180 days or more while the adjustment application was pending, the petition remains valid for priority date retention and possible eligibility under INA 204(j) for the adjustment application.
In addition, USCIS automatically revokes the approval of the petition in cases where:
- The petitioner’s business terminates after the approval of the petition;
- The petition has been approved for fewer than 180 days at the time; and
- A corresponding adjustment application has not been pending for at least 180 days (or has not been filed)
But if the business termination occurs 180 days or more after the petition’s approval, or if a corresponding adjustment application has been pending for 180 days or more, the petition may still be valid for priority date retention. The applicant may be eligible to port under INA 204(j) for the adjustment application (unless USCIS revokes the petition’s approval under substantive grounds) if they meet all requirements to port based on a new same or similar position, and the adjustment application has been pending for 180 days or more when the business termination occurs.
Counting 180-day clock for purposes of adjustment
There are a few technicalities that may become extremely important when figuring out how USCIS will be counting the 180-day clock. They are as follows:
For portability purposes, counting the number of days the adjustment application has been pending begins on the day the applicant properly filed the adjustment application with USCIS and includes every subsequent calendar day until USCIS receives the applicant’s request to port (so long as the application remains unadjudicated).
If the Form I-140 petitioner withdraws the petition or the petitioner’s business terminates before USCIS approves the petition, the portability provisions only apply if the adjustment application has been pending for 180 calendar days or more. If the adjustment application has been pending for fewer than 180 calendar days, portability does not apply and the petition is not approvable.
An immigrant visa must be available at the time an applicant files an adjustment application. However, a visa does not need to remain continuously available for the 180 days to accrue. The fact that a visa number becomes unavailable after the filing of the adjustment application does not stop the number of days required for Form I-140 petition portability eligibility from accruing.USCIS, July 2023
Meaning of “New Job in Same or Similar Occupational Classification” for purposes of portability under Form I-140
Determination on if a new job offer is valid for purposes of INA 204(j) portability is based on evidence of the same occupational classification or a similar occupational classification as the job specified in the original underlying Form I-140 petition.
Same Occupational Classification
The term “same occupational classification” means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. Accordingly, USCIS evaluates whether the jobs are identical, resembling in every relevant respect, or the same kind of category or thing when determining whether two job offers are in the same occupational classification.
Similar Occupational Classification
The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved. When determining whether two job offers are in similar occupational classifications, USCIS evaluates whether the jobs share essential qualities or have a marked resemblance or likeness.USCIS, July 2023
The Totality of Circumstances test for portability
To determine if the new job offer is in the same or similar occupational classification as the job listed on the petition, USCIS evaluates the totality of the circumstances. Relevant factors include, but are not limited to:
- The U.S. Department of Labor (DOL) occupational codes assigned to the respective jobs;
- Job duties;
- Job titles;
- The required skills and experience;
- The educational and training requirements;
- Any licenses or certifications specifically required;
- The offered wage or salary; and
- Any other material and credible evidence relevant to a determination of whether the new position is in the same or a similar occupational classification.
Job duties play a vital role in this determination and historically have been weighed heavily in the totality of circumstances test. However, USCIS does consider all factors to determine not only if the stated information qualifies, but also to determine the truthfulness of the information provided in the petition based on the congruency of all available information. Employers and employees are advised to provide factual, relevant, and up-to-date information to USCIS at all times.
A change to the same or a similar occupational classification may involve lateral movement, career progression, or porting to self-employment, either in the same or a different geographic location.
With respect to porting to self-employment, all other eligibility requirements must be satisfied.
First, as with all other portability determinations, the employment must be in a same or similar occupational classification as the job for which the original petition was filed.
Second, the adjustment applicant should provide sufficient evidence to confirm that the applicant’s business and the job offer are legitimate. If the submitted evidence is insufficient to confirm the legitimacy, or the officer identifies fraud indicators that raise doubts about the legitimacy of the self-employment, the officer may request evidence to show that the self-employment is legitimate. Third, as with any portability case, USCIS focuses on whether the petition represented the truly intended employment at the time of the filing of both the petition and the adjustment application. This means that, as of the time of the filing of the petition and at the time of filing the adjustment application (if not filed concurrently), the original petitioner must have had the intent to employ the beneficiary, and the beneficiary must also have intended to undertake the employment upon adjustment.
Officers may take the petition and supporting documents themselves as evidence of such intent, but in certain cases requesting additional evidence or initiating an investigation may be appropriate.USCIS, July 2023 (emphasis added)
Requesting portability with USCIS
When portability requests are filed:
Applicants filing or who have filed an adjustment application as the principal beneficiary of a valid Form I-140 petition in an employment-based immigrant visa category requiring a job offer must file a “Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j)” (Form I-485 Supplement J) to confirm the job offer’s validity or request job portability to a new full-time, permanent job offer they intend to accept after the adjustment application’s approval. Applicants granted a national interest waiver or classified as persons of extraordinary ability do not need to file Supplement J as these categories are not tied to a specific job offer.
Applicants can request portability after their adjustment application has been pending for 180 days, even during an adjustment interview or in response to a Request for Evidence or Notice of Intent to Deny from USCIS following a petition withdrawal request.
Preferred organization of evidence:
Requests made on or after January 17, 2017, require Form I-485 Supplement J. Before that date, a letter request was acceptable, but USCIS may request Supplement J even for earlier requests. The applicant should provide certain documents, including a copy of Form I-797 indicating the acceptance date of the adjustment application that states the receipt date and another Form I-797 showing the applicant as the principal beneficiary of an approved or pending Form I-140 petition.
USCIS evaluates the evidence to determine if the new job offer is in the same or similar occupational classification as the job listed on the underlying petition. If approved, the Supplement J is approved, and the adjustment application continues to be adjudicated. If the new job offer is not in the same or similar classification, USCIS denies the Supplement J and, consequently, the adjustment application, possibly adding other bases for denial if applicable.
Are you an applicant with questions about portability after filing for Adjustment of Status? Don’t navigate the complexities of immigration law alone! Our experienced law office is here to help you understand the intricacies of INA 204(j) and guide you through the entire portability process. Get in touch with us today to explore how we can collaborate and help you achieve your portability goals.