The USCIS (formerly the INS and the BCIS) released a memo about the 180-day portability rule. In addition, misconceptions and confusion about the rule itself, as well as previous communications from the INS, have caused confusion. Leading immigration attorney Carl Shusterman sheds some light on the issues in his chat with us on:
Changing Employers When You're Being Sponsored for a Green Card
Jennifer Wipf: I am calling Mr. Shusterman. Please keep in mind that we have many, many questions. He will answer in the order that makes the most sense for the chat, and if a question is the same as someone else's, in the interest of time, he will only answer the same thing once, for the most part.
Most importantly, please remember that all questions and answers here are of a general nature and cannot be construed as legal advice.
Carl Shusterman: Good evening everyone. The question of the 180-Day Portability Rule has been asked thousands of time, since the law was enacted in the year 2000. The rule is contained in section 106(c) of the American Competitiveness in the 21st Century Act of 2000 (AC21). Although it has been years since the law was enacted, the BCIS has yet to issue regulations implementing the law. However, on June 19, 2001, the INS issued policy memoranda explaining the agency's interpretation of various sections of the law, including the 180-Day-Portability Rule. Later the USCIS (at that time known as the BCIS) released a memoranda explaining how the rule would apply in cases where the I-140 visa petition was withdrawn, denied, or revoked. The purpose of tonight's chat is to discuss the ramifications of this latest memo, so let's get to the questions.
Question #1:Hi. In my case I changed jobs about 1 month after filing my I-485 because my employer went out of business. That happened 10 months ago. My I-140 was approved prior to filing I-485 and to the best of my knowledge my previous employer hasn't withdrawn it. What worries me is the wording "I-140 immigrant petition shall remain valid when an alien changes jobs, if the I-485 has been filed and remained unadjudicated for 180 days or more." At the time of changing jobs the I-485 hadn't been pending for 180 days yet. So, is my I-485 still valid? If it is, what documents should I file with the BCIS to prove that my current job is the same as the one before? How soon after changing jobs must I do it? Are there precedents, in which a green card has been denied in cases like mine?
Carl: Good question. There is a lot of confusion, not only among immigrants, but among immigration attorneys as well, as to the meaning of the 180-day rule. It is not necessary for you to remain with your initial employer for 180 days or more after the I-485 is ted. What is important is that the I-485 not be adjudicated during the first 180 days after submission. In your case, it has been over 10 months since the I-485 was ted, so the 180-day portability rule applies.
You must supply the USCIS with two documents. The first document is a letter, stating that, at the time you ted the I-485, it was your intention to remain with your initial employer indefinitely. The second document is a letter from your new employer stating that your new job is the same or similar to the job for which your labor certification and visa petition were approved. These letters may be ted at any time, but the process is much smoother if they are ted before you receive any notification regarding your application, from the USCIS.
The employer letter should contain the job title, job deion and salary of the new job. To determine whether the new job is the same or similar to the old job, the USCIS consults the Labor Department Dictionary of Occupational Titles (DOT) or the online O*NET Classification System (one of the two), or similar publications. The memo prohibits INS officers from denying I-485 based on failure to demonstrate that the new job is in the same or a similar occupation as the initial job unless they have consulted, on a case-by-case basis with USCIS headquarters. Shusterman.com links to the memo at http://shusterman.com/toc-gc.html#2A1 and to the DOT and the O*NET from http://shusterman.com/toc-dol.html#7.
Question #2: I was laid off after less than 180 days on the job, got a new job, same as the old, when I-485 was still pending, for less than 180 days. Up to now, my I-485 has been pending more than 22 months after approval of I-140 and no revocation. Can I use AC21?
Carl: Absolutely.
Question #3: In the case of concurrent filing of the forms I-140 and I-485, are the 180 days counted from the day of I-140 approval or from the date of I-485 receipt?
Carl: The 180 days always starts when the I-485 is received by the USCIS. This person brings up a good point. Since 2002, the INS has been allowing I-485 to be filed simultaneously with I-140s as long as the priority date is current.
Question #4: I am currently working as a physician in underserved area on an H-1B visa that is being renewed for another 3 years. Soon, I will complete my 3 years requirement for working in an underserved area. I have an approved labor certification and I just applied for I-140 Immigration petition. By Nov. 1st I am going to apply for adjustment of status. I am currently interviewing for a new job and I am intending to transfer jobs 6 months after filing for adjustment of status according to the portability law. Questions: 1. What do I need to file for new paperwork for a transfer of jobs (like renewal of H-1B or an employment authorization)? 2. If I transfer jobs and stay there for one year for example, can I change for a third job even though I won't have the green card yet?
Carl: First, it is necessary for you to file a letter with the USCIS stating that it was your intention to remain at your initial job indefinitely at the time that I-485 was filed. It is not supposed to be your intention to change jobs on day 181, after the I-485 has been filed. As long as you remain in the same or a similar occupation, you can move to job #2, job #3, etc. without having an impact on your eligibility for adjustment of status. Also, since you mention that you work in an underserved area, it is interesting to note that the location of the job is irrelevant to the portability process.
Question #5: Good Evening. My question is as follows: As per the discussion section of the memo, it states that an approved petition (I-140) is considered valid, provided that there is a bonafide agreement of employment whether it be a present or a prospective/future employer, on approval of permanent residence. Does this mean that we can change employers, etc. and should we have a contract with a prospective employer? If so, on approval of the green card, can we then switch jobs? If this is so, how long after permanent residence approval should we join this future employer?
Carl: The memo reminds service center directors and regional directors that there is no requirement that an applicant be employed by the petitioning employer or by the subsequent employer in order to qualify for adjustment of status. However, after the adjustment of status, it is important that the applicant begin working immediately for either the petitioning employer or any subsequent employer who advised the USCIS that they were offering the applicant employment. As a practical matter, it is unlikely that an INS service center would grant an application for adjustment of status based on employment to a person who was not already employed by either the petitioning employer or by a subsequent employer.
Question #6: I'm an H-1B visa holder and my labor certificate has been approved. I already applied for the I-140 and I-485. Unfortunately my I-140 was denied due to supposed inability of my employer to pay, due to current economic issues. Is there any possibility that I can keep my LC with another employer to finish my green card processing or do I have to start over now?
Carl: Unfortunately, you need to start over.
Question #7: Hi! Thanks a lot for the exceptional service. Need your suggestions. My (and family's) I-485, EAD, AP were applied for already. EAD & AP just got approved (as per online status) last week. I am going to lose my job in 1 to 2 weeks (hardly 60 days after the I-485 receipt date). But my employer will not revoke the I-140. I just got an offer from another company, but am unable to decide because of the 180 days rule. In view of the recent AC21 memo which seems to have two conflicting statements regarding validity of an I-140 in the case of a second employer before 180 days. What would you suggest? Even if I join the new company before 180 days and my old company retains the I-140, can I still claim that the original sponsor is still supporting my green card (even after laying me off) and for the time being that I'm working for the new company (on EAD or H-1B, another question). Then I could say I will return to the old company as soon as they find a project for me? I want to specify that my I-485 was applied after approval of my I-140. Thanks.
Carl: The 180-day portability rule was designed for cases such as yours. None of the four USCIS service centers which adjudicate I-485s do so in less than a year, much less 180 days. Your question is based on the misconception that any change of employment within the first 180 days after the I-485 is ted may be fatal to your application. The truth is that since you intended to work for the initial employer, but were laid off, it is your responsibility to find a new employer who can offer you a job in the same or a similar occupation as soon as possible. I would urge you to wait until 180 days have passed since the submission of your I-485, and then your intent letter and a letter from your new employer in order to invoke the portability doctrine.
The reason that I urge you to wait until after 180 days, is that if you notify the USCIS of your change of employment now, the agency could deny your I-485 before the 180 days have been reached and you would not be able to take advantage of the portability rule.
Question #8: In the text of the 180 day rule what does "similar occupation" mean? Is it the same position at another company, or the same type of department or industry? Or is it more based on education and experience? Are there any guidelines?
Carl: As I stated earlier in this chat, the only guidance regarding what is meant by "the same or a similar occupation"" is contained in an INS memo that directs officers to consult either the Labor Department's Dictionary of Occupational Titles (DOT), the online O*NET Classification System or similar publications. In my view, and I cannot guarantee whether the BCIS shares my view, a programmer/analyst with an approved labor certification and an approved I-140 should try to get another job as a programmer/analyst if he is terminated, laid off or wishes to change employers. If the programmer/analyst gets a new job as a programmer/analyst supervisor for $10-20K more than his initial supervisor, I very much doubt that the BCIS will deny his application on the basis that the new job is not in a similar occupation. However, if the programmer/analyst becomes a vice president of marketing for an IT firm, there may be a question as to whether his job duties have been altered so radically that he is no longer in the same or a similar occupation.
I would advise caution in accepting a new job. Consider the situation carefully. To date, none of our clients have been denied adjustment of status under the 180-day portability rule and I am not aware of any case that is being litigated due to such a denial.
Question #9: With regard to the new memo, how do I evidence to prove my new job is similar to my previous one used to file for my labor certificate? Generally, why would an employer decide to withdraw approved I-140 after they lay off people for whom the I-140 is applied? Is it common in US corporations? And if I change jobs multiple times after 180 days, do I evidence to BCIS multiple times?
Carl: Good question, probably the first that relates to the USCIS memo. Although it is not common practice for an employer to withdraw an I-140 visa petition after it is ted, there may-in some cases-be "bad blood" between an employer and an employee who has been terminated for cause or has quit his job in search of new employment. The August 4 memo provides that where an I-140 is withdrawn, on or after the 180 day period, and the applicant has not ted evidence of a new qualifying offer of employment to the BCIS, the agency will issue a Notice of Intent to Deny (NOID). If the applicant answers the NOID by ting evidence of a new qualifying offer of employment, the I-140 will remain valid, and the I-485 will receive regular processing. However, if the applicant fails to establish that the offer of employment is in the same or a similar position, or if he does not respond to the NOID, the I-485 may be immediately denied. Alternately, if the I-140 is either withdrawn or revoked before the I-485 has been pending for 180 days, the BCIS may deny the I-485. If the I-140 is revoked because of fraud, the BCIS may deny the I-485 immediately.
Jennifer: I'm sure everyone realizes that many of your questions were the same or similar and answered by the same reply. I hope everyone is more in the loop now that Carl has touched upon the key questions that so many of you had.
Carl: Thank you for the excellent questions tonight. It is apparent that there are a lot of misconceptions remaining regarding the most recent memo. For further reference, please see the tran of our chat entitled: "The 180-Day Portability Rule - Clearing Up Misconceptions." My site links to the chat tran from http://shusterman.com/toc-chat.html. A copy of tonight's chat will be posted online in the near future. In addition, we will cover this issue in detail in Shusterman's Immigration Update. If you are not a subscriber, you may subscribe online at http://shusterman.com/subscribe.html#subscribe. Thank you and have a good evening.
Jennifer: Thank you everyone. If you missed answers to the question you had, please check back here in the next two weeks for the tran. It will all be on both sites. I am turning off moderation so you may speak freely among yourselves.
Changing Employers When You're Being Sponsored for a Green Card
Jennifer Wipf: I am calling Mr. Shusterman. Please keep in mind that we have many, many questions. He will answer in the order that makes the most sense for the chat, and if a question is the same as someone else's, in the interest of time, he will only answer the same thing once, for the most part.
Most importantly, please remember that all questions and answers here are of a general nature and cannot be construed as legal advice.
Carl Shusterman: Good evening everyone. The question of the 180-Day Portability Rule has been asked thousands of time, since the law was enacted in the year 2000. The rule is contained in section 106(c) of the American Competitiveness in the 21st Century Act of 2000 (AC21). Although it has been years since the law was enacted, the BCIS has yet to issue regulations implementing the law. However, on June 19, 2001, the INS issued policy memoranda explaining the agency's interpretation of various sections of the law, including the 180-Day-Portability Rule. Later the USCIS (at that time known as the BCIS) released a memoranda explaining how the rule would apply in cases where the I-140 visa petition was withdrawn, denied, or revoked. The purpose of tonight's chat is to discuss the ramifications of this latest memo, so let's get to the questions.
Question #1:Hi. In my case I changed jobs about 1 month after filing my I-485 because my employer went out of business. That happened 10 months ago. My I-140 was approved prior to filing I-485 and to the best of my knowledge my previous employer hasn't withdrawn it. What worries me is the wording "I-140 immigrant petition shall remain valid when an alien changes jobs, if the I-485 has been filed and remained unadjudicated for 180 days or more." At the time of changing jobs the I-485 hadn't been pending for 180 days yet. So, is my I-485 still valid? If it is, what documents should I file with the BCIS to prove that my current job is the same as the one before? How soon after changing jobs must I do it? Are there precedents, in which a green card has been denied in cases like mine?
Carl: Good question. There is a lot of confusion, not only among immigrants, but among immigration attorneys as well, as to the meaning of the 180-day rule. It is not necessary for you to remain with your initial employer for 180 days or more after the I-485 is ted. What is important is that the I-485 not be adjudicated during the first 180 days after submission. In your case, it has been over 10 months since the I-485 was ted, so the 180-day portability rule applies.
You must supply the USCIS with two documents. The first document is a letter, stating that, at the time you ted the I-485, it was your intention to remain with your initial employer indefinitely. The second document is a letter from your new employer stating that your new job is the same or similar to the job for which your labor certification and visa petition were approved. These letters may be ted at any time, but the process is much smoother if they are ted before you receive any notification regarding your application, from the USCIS.
The employer letter should contain the job title, job deion and salary of the new job. To determine whether the new job is the same or similar to the old job, the USCIS consults the Labor Department Dictionary of Occupational Titles (DOT) or the online O*NET Classification System (one of the two), or similar publications. The memo prohibits INS officers from denying I-485 based on failure to demonstrate that the new job is in the same or a similar occupation as the initial job unless they have consulted, on a case-by-case basis with USCIS headquarters. Shusterman.com links to the memo at http://shusterman.com/toc-gc.html#2A1 and to the DOT and the O*NET from http://shusterman.com/toc-dol.html#7.
Question #2: I was laid off after less than 180 days on the job, got a new job, same as the old, when I-485 was still pending, for less than 180 days. Up to now, my I-485 has been pending more than 22 months after approval of I-140 and no revocation. Can I use AC21?
Carl: Absolutely.
Question #3: In the case of concurrent filing of the forms I-140 and I-485, are the 180 days counted from the day of I-140 approval or from the date of I-485 receipt?
Carl: The 180 days always starts when the I-485 is received by the USCIS. This person brings up a good point. Since 2002, the INS has been allowing I-485 to be filed simultaneously with I-140s as long as the priority date is current.
Question #4: I am currently working as a physician in underserved area on an H-1B visa that is being renewed for another 3 years. Soon, I will complete my 3 years requirement for working in an underserved area. I have an approved labor certification and I just applied for I-140 Immigration petition. By Nov. 1st I am going to apply for adjustment of status. I am currently interviewing for a new job and I am intending to transfer jobs 6 months after filing for adjustment of status according to the portability law. Questions: 1. What do I need to file for new paperwork for a transfer of jobs (like renewal of H-1B or an employment authorization)? 2. If I transfer jobs and stay there for one year for example, can I change for a third job even though I won't have the green card yet?
Carl: First, it is necessary for you to file a letter with the USCIS stating that it was your intention to remain at your initial job indefinitely at the time that I-485 was filed. It is not supposed to be your intention to change jobs on day 181, after the I-485 has been filed. As long as you remain in the same or a similar occupation, you can move to job #2, job #3, etc. without having an impact on your eligibility for adjustment of status. Also, since you mention that you work in an underserved area, it is interesting to note that the location of the job is irrelevant to the portability process.
Question #5: Good Evening. My question is as follows: As per the discussion section of the memo, it states that an approved petition (I-140) is considered valid, provided that there is a bonafide agreement of employment whether it be a present or a prospective/future employer, on approval of permanent residence. Does this mean that we can change employers, etc. and should we have a contract with a prospective employer? If so, on approval of the green card, can we then switch jobs? If this is so, how long after permanent residence approval should we join this future employer?
Carl: The memo reminds service center directors and regional directors that there is no requirement that an applicant be employed by the petitioning employer or by the subsequent employer in order to qualify for adjustment of status. However, after the adjustment of status, it is important that the applicant begin working immediately for either the petitioning employer or any subsequent employer who advised the USCIS that they were offering the applicant employment. As a practical matter, it is unlikely that an INS service center would grant an application for adjustment of status based on employment to a person who was not already employed by either the petitioning employer or by a subsequent employer.
Question #6: I'm an H-1B visa holder and my labor certificate has been approved. I already applied for the I-140 and I-485. Unfortunately my I-140 was denied due to supposed inability of my employer to pay, due to current economic issues. Is there any possibility that I can keep my LC with another employer to finish my green card processing or do I have to start over now?
Carl: Unfortunately, you need to start over.
Question #7: Hi! Thanks a lot for the exceptional service. Need your suggestions. My (and family's) I-485, EAD, AP were applied for already. EAD & AP just got approved (as per online status) last week. I am going to lose my job in 1 to 2 weeks (hardly 60 days after the I-485 receipt date). But my employer will not revoke the I-140. I just got an offer from another company, but am unable to decide because of the 180 days rule. In view of the recent AC21 memo which seems to have two conflicting statements regarding validity of an I-140 in the case of a second employer before 180 days. What would you suggest? Even if I join the new company before 180 days and my old company retains the I-140, can I still claim that the original sponsor is still supporting my green card (even after laying me off) and for the time being that I'm working for the new company (on EAD or H-1B, another question). Then I could say I will return to the old company as soon as they find a project for me? I want to specify that my I-485 was applied after approval of my I-140. Thanks.
Carl: The 180-day portability rule was designed for cases such as yours. None of the four USCIS service centers which adjudicate I-485s do so in less than a year, much less 180 days. Your question is based on the misconception that any change of employment within the first 180 days after the I-485 is ted may be fatal to your application. The truth is that since you intended to work for the initial employer, but were laid off, it is your responsibility to find a new employer who can offer you a job in the same or a similar occupation as soon as possible. I would urge you to wait until 180 days have passed since the submission of your I-485, and then your intent letter and a letter from your new employer in order to invoke the portability doctrine.
The reason that I urge you to wait until after 180 days, is that if you notify the USCIS of your change of employment now, the agency could deny your I-485 before the 180 days have been reached and you would not be able to take advantage of the portability rule.
Question #8: In the text of the 180 day rule what does "similar occupation" mean? Is it the same position at another company, or the same type of department or industry? Or is it more based on education and experience? Are there any guidelines?
Carl: As I stated earlier in this chat, the only guidance regarding what is meant by "the same or a similar occupation"" is contained in an INS memo that directs officers to consult either the Labor Department's Dictionary of Occupational Titles (DOT), the online O*NET Classification System or similar publications. In my view, and I cannot guarantee whether the BCIS shares my view, a programmer/analyst with an approved labor certification and an approved I-140 should try to get another job as a programmer/analyst if he is terminated, laid off or wishes to change employers. If the programmer/analyst gets a new job as a programmer/analyst supervisor for $10-20K more than his initial supervisor, I very much doubt that the BCIS will deny his application on the basis that the new job is not in a similar occupation. However, if the programmer/analyst becomes a vice president of marketing for an IT firm, there may be a question as to whether his job duties have been altered so radically that he is no longer in the same or a similar occupation.
I would advise caution in accepting a new job. Consider the situation carefully. To date, none of our clients have been denied adjustment of status under the 180-day portability rule and I am not aware of any case that is being litigated due to such a denial.
Question #9: With regard to the new memo, how do I evidence to prove my new job is similar to my previous one used to file for my labor certificate? Generally, why would an employer decide to withdraw approved I-140 after they lay off people for whom the I-140 is applied? Is it common in US corporations? And if I change jobs multiple times after 180 days, do I evidence to BCIS multiple times?
Carl: Good question, probably the first that relates to the USCIS memo. Although it is not common practice for an employer to withdraw an I-140 visa petition after it is ted, there may-in some cases-be "bad blood" between an employer and an employee who has been terminated for cause or has quit his job in search of new employment. The August 4 memo provides that where an I-140 is withdrawn, on or after the 180 day period, and the applicant has not ted evidence of a new qualifying offer of employment to the BCIS, the agency will issue a Notice of Intent to Deny (NOID). If the applicant answers the NOID by ting evidence of a new qualifying offer of employment, the I-140 will remain valid, and the I-485 will receive regular processing. However, if the applicant fails to establish that the offer of employment is in the same or a similar position, or if he does not respond to the NOID, the I-485 may be immediately denied. Alternately, if the I-140 is either withdrawn or revoked before the I-485 has been pending for 180 days, the BCIS may deny the I-485. If the I-140 is revoked because of fraud, the BCIS may deny the I-485 immediately.
Jennifer: I'm sure everyone realizes that many of your questions were the same or similar and answered by the same reply. I hope everyone is more in the loop now that Carl has touched upon the key questions that so many of you had.
Carl: Thank you for the excellent questions tonight. It is apparent that there are a lot of misconceptions remaining regarding the most recent memo. For further reference, please see the tran of our chat entitled: "The 180-Day Portability Rule - Clearing Up Misconceptions." My site links to the chat tran from http://shusterman.com/toc-chat.html. A copy of tonight's chat will be posted online in the near future. In addition, we will cover this issue in detail in Shusterman's Immigration Update. If you are not a subscriber, you may subscribe online at http://shusterman.com/subscribe.html#subscribe. Thank you and have a good evening.
Jennifer: Thank you everyone. If you missed answers to the question you had, please check back here in the next two weeks for the tran. It will all be on both sites. I am turning off moderation so you may speak freely among yourselves.
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