United States: Changing Jobs When Your AOS Application Is Backlogged Or On Hold: A Brief Guide To Job Portability

In October 2000, Congress passed the American Competitiveness in the 21^st Century Act (AC21). Section 106(c) of AC21 adds a provision to the Immigration and Nationality Act at 204(j), which provides flexibility to adjustment of status applicants, with long pending applications, to change jobs or employers if their I-485 application has been pending for at least 180 days and the new job offer is in the same or similar occupational classification. INA204(j) states:

An applicant, therefore, may be eligible for job portability if the following three conditions are met: (1) they are the Beneficiary of an approved I-140 or pending I-140 that is ultimately approved in the employment-based 1^st, 2^nd or 3^rd preference category; (2) their application for adjustment of status has been pending for 180 days or more; and (3) the new job offer is in the same or similar occupational classification as the initial position that was the basis of the approved I-140. 

Eligibility for portability requires that the applicant have an approved I-140 petition or a pending I-140 petition that is ultimately approved in the employment-based 1^st, 2^nd or 3^rd preference category. In the event of a portability request made off of an unapproved I-140, USCIS must first approve the I-140 or determine that the I-140 would have been approvable if it were adjudicated within the 180 days. This allows for an applicant to change jobs even if the I-140 petitioning employer is no longer in business at the time the petition is adjudicated if it would have been approvable if adjudicated within 180 days and the new employment is in the same or similar occupational classification 

The adjustment of status application must be pending for 180 days or more before an applicant is eligible to port and this is calculated by calendar date starting on the day the application is properly filed with USCIS and through the date the request for job portability is made. Importantly, the adjustment of status application must remain unadjudicated. Also, while an applicant's priority date must be current at the time of filing the adjustment of status application, if the date retrogresses while the adjustment of status is already pending, the days continue to accrue for purposes of portability.

The new job offer must be in the same or similar occupational classification as the initial job offer that is the basis of the approved I-140 petition. A new job offer in the same occupational classification "means an occupation that resembles in every relevant respect to the occupation for which the underlying employment-based visa petition was approved. 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."¹ When evaluating whether the new job offer is in a similar occupational classification, USCIS will not look to any one factor, but will review the "totality of the circumstances", including but not limited to the Standard Occupational Classification (SOC) Code, job title, job duties, required skills and experience, license or certification required, offered wage, and any other relevant evidence that can aid in the determination. 

The SOC Codes do not need to be identical for each of the positions, but USCIS will look at whether different SOC codes are broadly related and consider how closely related the occupational classifications are by looking at the similarity of job duties, experience required, or typical fields of study associated with each position. In addition, portability requests can also be granted when, through the course of natural career progression, the applicant moves to a managerial/supervisory role that corresponds to a different SOC code. Relevant factors to be considered are whether the applicant will manage/supervise the same or similar functions and whether the employees managed/supervised are performing the same or similar duties as those in the original job.

A similarity in the offered wage for each position does not in itself meet the threshold for determining the two positions are similar. While it is a factor to be considered, an increase in the offered wage does also not preclude the determination that the positions are similar. USCIS recognizes that salary increases are normal due to cost-of-living adjustments, natural career progression and other economic factors, such as location, size and nature of employer's business. Any substantial difference in wages should be addressed in the portability request.

Perhaps the most critical factor considered in determining whether the two positions are similar are the job duties. While USCIS will consider the SOC code and wages, the responsibilities of the two positions must be satisfactorily similar in order for a favorable portability request.

To make a portability request, the applicant must file Form I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) and the applicant must be able to show that there is a bona fide offer of employment at the time of adjustment.

In all portability requests, USCIS must be satisfied that the petition represented the true intent of employment, i.e., the original employer must have intended to employ the applicant pursuant to the terms of the petition and the beneficiary must have intended to accept the employment upon adjustment.

Footnote

1. 8 CFR §245.25(b)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.