I-140 work-based employment visa petition portability found in section 106(c) of the American Competitiveness in the 21st Century Act (AC21) is an important tool for adjustment of status applicants for work-based employment visas who find their adjustment of status applications pending for at least 180 days from filing. With a long-pending adjustment of status application, the applicant for a work-based employment visa may switch jobs without rendering his or her Form I-140, Immigrant Petition for Alien Worker invalid, provided that the job is in the “same or similar” occupational classification as the job on the I-140 petition. Furthermore, if an I-140 petition is ported, its underlying labor certification application (if applicable) remains valid despite the new employment.1 Applicants for I-140 portability with previously approved I-140 petitions need only satisfy that their new job is in the same or similar occupational classification as the job on their approved I-140 petition. However, applicants who had I-140 petitions filed concurrently with adjustment of status applications, and do not have a final decision on their I-140 petitions, must first demonstrate that their I-140 petitions were “approvable when filed” before satisfying the same or similar requirement.
In order to be eligible for I-140 portability, an applicant:
- Must be seeking to move to a job that is in the same or similar occupational classification as the job described on the I-140 petition
- Must have an adjustment of status application to one of the first three employment-based visa preference categories, and that the application has been pending for at least 180 days2
If an I-140 petition is withdrawn after 180 days have elapsed from filing for I-485 adjustment of status, current guidance instructs adjudicators to consider the I-140 petition portable.3 However, since this is agency guidance and not explicitly stated in the statute4, it is possible that adjudicators may not follow agency guidance in a given case. In those cases, a worker who was rejected for I-140 portability may have grounds to appeal.5 If the I-140 petition is withdrawn before 180 days have elapsed since filing for I-485 adjustment of status; the I-140 petition is not valid for purposes of portability. If the I-140 petition is ultimately denied, it is not valid for purposes of portability.6
If the beneficiary of an I-140 petition does not work for the employer described on the I-140 petition for part of or for the entire period before 180 days elapse from the filing of the I-485 adjustment of status application, he or she is still eligible for I-140 portability provided that the other requirements are met. Furthermore, he or she may apply for I-140 portability while still working for the employer described on the I-140 petition.7
If the applicant filed an I-140 petition concurrently with an application for adjustment of status to one of the first three employment-based visa preference categories, and his or her I-140 petition has not yet been adjudicated, he or she must demonstrate that the I-140 petition was approvable when filed, that is, that the applicant and the I-140 petition would have been approvable when it was filed.
In order to establish that the prospective employment being sought is in the “same or similar” occupational classification as the job listed on the I-140 petition, the prospective employer must provide information about the nature of the prospective employment and the applicant for I-140 portability must provide a description of both the prospective employment and the employment listed on the I-140 petition. Adjudicators at United States Citizenship and Immigration Services (USCIS) consult the Dictionary of Occupational Titles (DOT) code and/or the Standard Occupational Classification (SOC) code to compare the two jobs and make an initial determination as to whether the two jobs are sufficiently similar for the I-140 petition to be ported.8
A substantial discrepancy in wages between the job on an approved labor certification and/or I-140 petition may factor negatively into a determination on whether the two jobs are similar.9 However, a discrepancy between wages is not in and of itself a basis for denial of I-140 portability.10
Since the labor certification application (if applicable) underlying the I-140 petition remains valid when porting an I-140 petition, the I-140 may be ported to a job in a different geographic area, provided that the two jobs satisfy the same or similar requirement.11
An I-140 petition may be ported to self-employment provided that:
- The self-employment is in the same or similar occupational classification as the job described in the I-140 petition; and
- The self-employment is shown to be legitimate, likely through the request for evidence (RFE) process; and
- The employment opportunity described in the I-140 petition reflected the intent of the petitioner and beneficiary at the time of filing.12
In order to satisfy the same or similar requirement, an applicant seeking I-140 portability to self-employment must consider if there are extra responsibilities entailed by the prospective self-employment that were not present in the job described on the I-140 petition. Even if the two jobs appear to be similar, a significant difference in the responsibilities of the applicant may lead to a USCIS finding that they are not sufficiently similar for I-140 portability purposes. For example, even the primary job of the applicant is sufficiently similar to the job listed on his or her I-140, assuming significant managerial responsibilities pursuant to self-employment may, depending on the circumstances, lead to USCIS finding that the two jobs are not sufficiently similar.
In order to prove that the prospective self-employment is legitimate, the applicant for portability will have to provide evidence that he or she has taken steps in establishing the self-employment arrangement, and that the self-employment is full time and permanent.13
Foreign nationals classified as first-preference classification multinational managers and executives may be eligible for I-140 portability even if their new employer is not corporately related to the entity that employed them overseas [INA § 203(b)(1)(C)].14 However, the applicant will have to demonstrate that the new employer qualifies as an employer that may employ first-preference classification foreign workers, and that the new employer is hiring him or her for an executive or managerial job that is sufficiently similar to the one on the I-140 petition.15
Work-based immigrant visa applicants who file an I-140 petition concurrently with a I-485 application to adjust status may find that both applications are pending after 180 days from filing the application to adjust status. In those cases, the still unapproved I-140 petition is considered valid for portability purposes so long as it was “approvable when filed.”16 If the original I-140 petition is found to have been approvable when filed, USCIS is instructed to approve the I-140 petition and then address whether the new job meets the same or similar requirement.17
In order to satisfy the requirement that the petition was approvable when filed, the applicant for I-140 portability must only demonstrate that the I-140 petition satisfied all of the requirements for approval at the time it was filed. If the employer described on the I-140 petition would not be able to satisfy all of the requirements at the time the applicant is seeking to port an I-140 petition; that would not adversely affect the applicant's case.18 However, if the beneficiary of the I-140 petition had any issues separate from the employer, that may render the I-140 petition not approvable when filed.19
If USCIS adjudicators need more evidence to make a decision, they will send a request for evidence to the employer described on the I-140 petition.20 In this case, the beneficiary of the I-140 petition will require the employer he or she no longer intends to work for to provide USCIS with evidence that the I-140 petition was approvable when filed. In addition to no longer seeking to employ the I-140 beneficiary, the employer in this case is not required to respond with the requested evidence. If the employer listed on the I-140 does not respond to the satisfaction of USCIS, this will likely be fatal to the applicant. In the case of an RFE, the applicant will rely solely on the good will of the original employer to submit a satisfactory response to USCIS.
In order to be eligible for adjustment of status to a work-based immigrant visa, an applicant for adjustment of status must be employed at the time his or her adjustment of status application is approved. I-140 portability allows adjustment of status applicants to find employment to fulfill that requirement after their adjustment of status applications have been pending for at least 180 days. They should note, however, that they must be approved for employment at the time the adjustment of status application is approved to be entitled to permanent resident status.21
The I-140 portability provisions allow employees with long-pending I-140 adjustment of status applications to change jobs from the employer listed on the I-140 or to find new work entirely without ruining the underlying validity of the original I-140 petition. However, there are certain risks involved if the process is not done correctly or if the new work is ultimately found to not be in the “same or similar” occupational classification as the work listed on the I-140. For these reasons, persons considering exercising I-140 portability should always first discuss the situation with an experienced immigration attorney for guidance regarding eligibility, prudence, and ultimately exercising the process correctly. An experienced immigration attorney, for example, may help an applicant who is exercising I-140 portability with a pending I-140 petition demonstrate that the I-140 was approvable when filed such that USCIS is not compelled to send an RFE to the employer listed on the original I-140.
I-140 portability is especially valuable if an I-140 beneficiary is out of work with a pending adjustment of status application, since his or her status may only be adjusted while the I-140 beneficiary is employed full time. In this scenario, an experienced immigration attorney may greatly improve an I-140 beneficiary's chances of establishing suitable employment for purpose of adjustment of status.
- E. Pelta and J. Vazquez-Azpiri. ALIA's Focus on Immigration Practice Under AC21,ALIA Publications, (2009), 56
- Pelta and Vazquez-Azpiri 56, citing AC21 § 106(c)
- I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1238, citing Memo, Yates, Asst. Dir. Operations, USCIS, HQBCIS 70/6.2.8-P (Aug. 4, 2003)
- See AC21 § 106(c)
- Kurzban 1238, citing George v. Napolitano, 693 F.Supp.2d 125, 130-131 (D.D.C. 2010)
- Kurzban 1238
- Pelta and Vazquez-Azpiri 59
- Id. citing Michael Aytes, Acting Direction of Domestic Operations, USCIS, USCIS Memorandum, “Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313)” (Dec. 27, 2005)
- Kurzban 1238
- Kurzban 1238, citing Memo, Yates, Asst. Dir. Operations, USCIS, HQBCIS 70/6.2.8-P (Aug. 4, 2003)
- Pelta and Vazquez-Azpiri 62, citing Aytes Memo (Dec. 27, 2005)
- Pelta and Vazquez-Azpiri 63, citing 20 CFR § § 656.3, 656.10(c)(10)
- Pelta and Vazquez-Azpiri 63, citing Aytes Memo (Dec. 27, 2005)
- Pelta and Vazquez-Azpiri 61, citing Aytes Memo (Dec. 27, 2005)
- Pelta and Vazquez-Azpiri 65, citing Aytes Memo (Dec. 27, 2005)
- Kurzban 1238, citing Yates, Asst. Dir. Operations, USCIS, HQBCIS 70/6.2.8-P (Aug. 4, 2003)
- Pelta and Vazquez-Azpiri 65, citing Aytes Memo (Dec. 27, 2005)
- Pelta and Vazquez-Azpiri 65-65, citing Aytes Memo (Dec. 27, 2005)
- Pelta and Vazquez-Azpiri 69
Resources and Materials:
Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1238. Print. Treatises & Primers.
Pelta, Elanor, and Vazquez-Azpiri, A. James. “ALIA's Focus on Immigration Practice Under AC21. Washington, D.C.: ALIA Publications, 2009. 56, 59, 61-66, 69. Print. ALIA's Focus Ser.