Can I Change Employers While Aos Is Pending?

What is AC21?

Background:

• In 2000, Congress enacted the American Competitiveness in the Xx-Outset Century Act of 2000[i] (AC21) which, in function, added INA 204(j)
•  This provision allows certain employment-based aligning of status applicants experiencing delays in the employment-based adjustment of the status process some flexibility to change jobs or employers while their Application to Annals Permanent Residence or Suit Status (Form I-485) is pending

"If eligible under INA 204(j), the Immigrant Petition for Conflicting Workers (Form I-140) (and underlying permanent labor certification, if applicable) may remain valid and the casher of an approved employment-based immigrant visa petition in the 1st, second, or 3rd preference category may transfer, or "port," to a qualifying new job offering that is in the same or a like occupational classification as the job offering for which the petition was filed. The new job offering may be through the same employer that filed the petition or a dissimilar employer".

"These provisions are referred to as "portability." Employment-based aligning applicants who apply such benefits are considered to have "ported" the petition filed on their behalf to the new job offer".

What Types of Jobs are "Portable?"

How Can I Utilize the Same Priority Engagement?

General Portability Requirements

To qualify for portability under INA 204(j), the aligning applicant must run across the post-obit eligibility requirements:

• The bidder is the beneficiary of an approved Form I-140 petition or of a pending petition that is ultimately canonical
• The petition is filed in the employment-based 1st, 2nd, or tertiary preference category
• The applicant's properly filed adjustment awarding has been awaiting with USCIS for 180 days or more at the time USCIS receives the request to port
• The new chore offer through which the applicant seeks to adjust status is in the same or like occupational classification as the chore specified in the petition
• The bidder submitted a asking to port
• The new job offer perchance with the same petitioner or with an entirely new employer, including cocky-employment
• Applicants can submit the portability request and testify with the adjustment application or in any in-person interviews or in response to a request or other notice from USCIS

Note:

• If the applicant makes a request to "port" on or after January 17, 2017, the applicant must submit a Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) (Form I-485 Supplement J)
•  If the bidder requested to port before Jan 17, 2017, the applicant could have requested to port through a letter, since Form I-485 Supplement J did not go into effect until January 17, 2017

Is Approved Petition Required?

• • If USCIS has canonical an applicant's Form I-140 petition and the applicant'south adjustment application remained unadjudicated for 180 days or more (from the aligning application receipt date), the approved petition remains valid unless the petition'south approval is subsequently substantively revoked
  • This applies even if the applicant changes jobs or employers so long as the new offer of employment is in the aforementioned or similar occupation
  • Still, If the adjustment application has been pending for less than 180 days, the approved petition cannot be ported for new employment
  • In all cases, an offer of employment must have been bona fide and the employer must have had the intent (at the fourth dimension the petition was canonical) to employ the casher upon adjustment

In instance of revocation, the officeholder adjudicating the aligning application may deny the aligning application and Supplement J request.

What if the Petition is Withdrawn by My Previous Employer?

• • If USCIS receives a request from a petitioner to withdraw a awaiting Class I-140 petition, USCIS issues an acknowledgment of the withdrawal request and denies whatever respective adjustment awarding
  • Still, if the pending petition is approvable and the adjustment awarding was awaiting for 180 days or more than, the petition may remain valid for priority engagement retention and possible eligibility under INA 204(j) for the adjustment application.[7]

However, If the aligning applicant is not eligible under INA 204(j), the applicant must obtain a new employment-based preference petition in gild to file a new aligning application, even if the withdrawal of the original petition occurred after it had been approved for at to the lowest degree 180 days or a corresponding adjustment application was pending for at least 180 days.

When Does the Countdown Start for 180 Days?

The counting the number of days the aligning application has been pending begins on the day the applicant properly filed the aligning awarding with USCIS and includes every subsequent calendar day until USCIS receives the applicant'southward asking to port (then long as the application remains unadjudicated).

What is the  Purpose of I-485 Supplement J and the Air conditioning-21 Portability Process?

• The purpose of I-485 Supplement J is to provide a confirmation of the bona fide job offer (during initial I-485 filing) or to inform USCIS in I-485 porting cases under Ac-21 (for pending I-485 cases)

Who Needs to File Class I-485 Supplement J?

• For  all new I-485 filings where it is used to ostend that the job offered in the underlying I-140 immigrant petition (pending or approved) is yet valid and offered to the beneficiary
•  All requests for AC21 portability of pending I-485 applications where the beneficiary wishes to transfer their awaiting I-485 to a new employer or job which is "same or similar"

Is it Necessary For My I-485 Application to be Pending for More than than 180 days if I have an Approved I-140?

• Although USCIS cannot deny your I-485 application on the sole footing that yous left your employer before 180 days have passed
• USCIS tin can issue a request for evidence (RFE) to decide whether the original offer of employment was bonafide
• Your sponsor's support could be necessary to respond to the RFE and its refusal to cooperate could mean denial of your I-485 application

How to Determine If a New Chore is in Same or Similar Occupational Classification?

"To determine whether a new job offer is valid for purposes of INA 204(j) portability, the new task offer must exist in either the same occupational nomenclature or a similar occupational classification as the job specified in the underlying Form I-140 petition".

Same Occupational Classification

• An occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved.[17]
• Accordingly, USCIS evaluates whether the jobs are identical, resembling in every relevant respect, or the same kind of category or matter when determining whether 2 chore offers are in the aforementioned occupational classification

Like Occupational Classification

• 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.[18]
• 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

In gild to decide if the new task offering is in the same or similar occupational nomenclature every bit the job listed on the petition, officers evaluate various factors.

Relevant Factors Include:

• The U.S. Department of Labor (DOL) occupational codes assigned to the respective jobs;
• Job duties
• Task titles
• The required skills and experience
• The educational and training requirements
• Any licenses or certifications specifically required
• The offered wage or salary
• Any other material and credible evidence relevant to a conclusion of whether the new position is in the aforementioned or a like occupational classification

Note: A alter to the same or a similar occupational classification may involve lateral movement, career progression, or porting to cocky-employment, either in the same or a different geographic location.

Should I Keep both I-485 and H1-B/L1 or H4?

It is besides great to have both H1-B, L1, or H4, and I-485 if possible. It is a neat contingency, if there is a sudden chore loss or the possibility of beingness out of status, immediate availability of an EAD and AP would definitely help you lot avoid whatsoever violations.

We wrote a blog on that topic which might help yous make a decision. You can find that web log hither

Portability rules are circuitous. Contact a reliable clearing chaser to ensure a safety transition to your new employment.

If you have questions about the adjustment of condition  or accept questions about the Green Carte du jour process in general, you can schedule a consultation with us:

Schedule a phone call at 469-994-9407   or contact us using the class .

Due to popular demand (and a few e-mails from people who could non join the H-1B webinar I hosted a few weeks ago), I decided to have some other H-1B CAP webinar on February 25, 2021, at 12pm (CST).

I volition embrace the following topics:

1. H-1B Registration
2. Information near the selection process
3. H-1B Requirements for the Employer and the Employee
4. Tips to avoid an RFE
5. Considerations for OPT students
6. Q &A

If you are interested, and could not make the previous webinar, y'all tin register here:

Source: https://ustunlawgroup.com/changing-jobs-after-filing-i-485-with-ac-21/

Posted by: smithdidess1938.blogspot.com

Share this post