The US Citizenship and Immigration Services (USCIS) recently published guidance on the processing procedure of I-140 (employment-based immigration) petitions. One major issue discussed in the guidance is the issue of change of employer (porting) while the underlying I-140 is pending.
Who can request to change employer, commonly known as “porting” to another employer, while I-140 is pending?
Under the Immigration and Naturalization Act (INA) §204(j), an alien beneficiary of a pending or approved employment-based petition (form I-140) and his or her application for adjustment of status (form I-485) has been filed and pending for 180 days or more; and who seeks to change to a new job that is the same or similar occupational classification may submit a request to “port” under AC21.
How does an alien beneficiary submit a request to change employers?
The issue of I-140 porting is examined in the determination of form I-485 application, not in the adjudication of form I-140. Therefore an I-140 beneficiary may supplement the form I-485 record of proceeding with documentation relating to the new job offer that forms the basis of the INA §204(j) portability request. The alien beneficiary or the case representative for the form I-485 application must send a letter from the new intended permanent employer specifying the job title and duties of the offered position, the minimum educational or training requirements, the date the alien beneficiary began (or will begin) employment and the offered salary or wage. The letter must be issued and signed by the appropriate authority within the new employer’s organization that is authorized to make or confirm an offer of permanent employment. In addition, a copy of the form I-140 approval notice or receipt notice and a copy of the form I-485 receipt notice should be provided to locate the alien’s beneficiary’s case file and to confirm that the application has been pending for at least 180 days.
An I-140 beneficiary may request to “port” to a different employer or job even if his or her Form I-140 petition is still pending
An I-140 beneficiary may request to change employers under INA 204(j) while the I-140 petition is pending, as long as his or her form I-485 adjustment application has been pending for at least 180 days. However, in order for the I-140 petition to “remain valid” for INA §204(j) purposes, it must be determined by the USCIS that the I-140 petition was “valid” when it was initially filed, i.e., that the I-140 petition was filed on behalf of an alien who was entitled to the employment-based classification and that the petition contained a valid job offer at the time that the petition was filed. Therefore, the petition must be approved prior to a favorable determination regarding a portability request made under INA §204(j).
The USCIS issued a memo on December 27, 2005 entitled “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)” This memo instructed how USCIS processes unapproved I-140 petitions that were concurrently filed with I-485 applications in employer porting context. In the situation, the USCIS adjudicator will first determine if the alien is the beneficiary of an approved I-140 petition. If he or she is not, the adjudicator will proceed to determine whether the unapproved, pending I-140 was approvable when filed. Then, only if the I-140 can be approved, the adjudicator will adjudicate the adjustment of status application and also determine if the new position is the same or similar for I-140 portability purposes.
