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Changing Employers with an I-485 Pending: The 180 days portability rule By Stuart Tendler* I. A Prolonged Economic Slump Nearly two months after the U.S. financial system collapsed, the economy shows no signs of imminent recovery. Layoffs continue across economic sectors. The unemployment rate hit 6.5 percent in October – the highest rate since 1994. Job insecurity permeates the labor market, for U.S. citizens and aliens alike. However, aliens face challenges far more severe than native and naturalized citizens; aliens must manage their non-immigrant status and the potential of job loss jeopardizing the immigration application process. Aliens with employer-sponsored I-140 petitions and pending adjustment of status applications need to know the portability rule and how it affects them. Interestingly, the portability rule implemented during the economic boom days in 2000 offers some comforts and help for aliens with employer-sponsored immigration petitions and an I-485 pending for 180 days. II. Prior Requirements The default rule for an employer-sponsored immigration petition requires that alien beneficiaries work for a reasonable amount of time for their sponsoring employer after obtaining a green card through an adjustment of status or consular processing. In absence of the law providing a formal definition of ‘a reasonable amount of time’ immigration practitioners adopted two years as an appropriate definition without objection from USCIS. In essence, nothing requires that aliens work for their sponsoring employer at any point before green card approval. Moreover, working for the sponsoring employer before green card approval never satisfies the ‘reasonable amount of time’ requirement. Though not always, aliens usually work for their sponsoring employers while USCIS processes their green card application. Because of the immigrant visa number backlog and bureaucratic delays processing adjustment of status applications, aliens often wait several years before obtaining their green cards, which is the general situation for EB-3 applicants and Indian and Chinese EB-2 applicants. Therefore, the default rule unduly restricts aliens’ ability to change employers during their long march to realizing their American dreams, as leaving an employer before obtaining a green card might alienate the employer and deny aliens the opportunity to work for the sponsoring employer for a reasonable time after obtaining a green card. III. Portability Derived from the American Competitiveness in the 21st Century Act (AC21), the portability rule responded to business demand for skilled labor by providing job market liquidity for long-delayed adjustment of status applicants. The portability rule also reflects congressional intent that some aliens with legitimate job opportunities retain their adjustment of status regardless of bureaucratic delays. Current law allows aliens with approved I-140s, or an I-140 that will be approved, and I-485 applications pending for at least 180 days to port from one job to a job being offered by a non-petitioning employer in the same or similar occupation. USCIS measures ‘same or similar occupation’ by comparing job duties, the jobs’ legal classification codes, and the jobs’ salaries. The 180 days rule only benefits aliens with employer-filed I-140 petitions. Aliens who self-petition their I-140s may change employers at any time, so long as they continue working in the same field of expertise. If the petitioning employer withdraws a pending I-140, regardless of how long an I-485 has been pending, USCIS denies the I-140 and thus the I-485. However, given an approved I-140 and an I-485 pending for at least 180 days, the I-485 applicant may port without much risk. So long as the I-485 applicant has evidence that he or she had a good faith job offer from the I-140 petitioning employer for the first 180 days of a pending I-485, even the employer’s revocation request does not impact the I-485. Being employed by the I-140 petitioning employer for the first 180 days of a pending I-485 provides very strong evidence that a good faith job offer existed for those 180 days. Nevertheless, the law does not require actual employment. Other evidence suffices, such as a statement from the employer proving a good faith job offer on or after the 180th day an I-485 has been pending, and allows aliens to take advantage of the portability rule. If an I-485 has been pending for 180 days, but an I-140 has not been approved, changing employers carries huge risk. First, the employer may withdraw the pending petition and the I-140 and thus I-485 may be denied. Second, if USCIS requires additional evidence, the petitioning employer, with no incentive to respond, may ignore the request. In this case, USCIS denies the I-140 and the I-485 fails. Aliens may take advantage of the 180 days rules only if USCIS eventually approves their I-140 or the petitioning employer willingly cooperates with USCIS’ RFE. To restate, if an I-140 has been approved, a revocation request from an employer may not impact the applicant’s I-485 case, if the revocation request was made 180 days after the I-485 was filed. However, if an I-140 revocation request is made within 180 days after the I-485 was filed, the I-485 will be denied. IV. Mawalla v. Chertoff, 2007 The risk of switching jobs while an I-485 has been pending less than 180 days is not hypothetical. In 2007, the United States District Court for the District of Columbia ruled on the matter when Frederick Mawalla objected to USCIS denying his I-485. Mr. Mawalla’s employer filed an I-140 on his behalf, which USCIS approved in 2002. In 2004 Mr. Mawalla filed an I-485. Mr. Mawalla switched jobs while his I-485 had been pending for 141 days. Portability therefore did not apply, so after USCIS received written notice from Mr. Mawalla’s original employer that the petitioner withdrew the I-140, Mawalla’s I-140 was revoked, triggering the automatic denial of his I-485. Mawalla argued that USCIS incorrectly denied his I-485 because he had a bona fide job offer from an employer in the same or similar occupation. However, portability allows aliens to switch jobs without losing their I-140 and ending the adjustment of status process only if their I-485 has been pending for 180 days or more. Therefore, USCIS denied Mawalla’s I-485 by finding that Mr. Mawalla was not protected by the portability rule. V. Conclusion Aliens with the opportunity to accept a seemingly more secure job than their current position may jump at the opportunity. However, given that ultimate security rests with a green card, aliens with a pending I-485 application should remain keenly aware that, if their I-485 has not been pending for 180 days, they risk abandoning their I-485 application. Moreover, a practical approach dictates that an alien with a pending I-140 should not change employers even with an I-485 pending for 180 days, as the employer may withdraw the pending I-140 before its approval. For the sake of not starting the green card process all over again, the most prudent path for aliens with an I-485 application pending is retaining their current employment until 180 days have passed after filing their I-485 and their I-140 has been approved. In the unlucky event that an alien leaves an I-140 sponsoring employer before an I-485 has been pending for 180 days, or even before the filing of an I-485, there is a small comfort: aliens with approved I-140s maintain their priority date for their next application. Maintaining priority date is meaningful and benefits future EB-3 applicants, or aliens who were born in India and China and would apply for an EB-2, as the immigrant visa number backlog is several years for all EB-3 petitions and Chinese and Indian EB-2 petitions. Moreover, the portability rule only supplements the default rule of working for the sponsoring employer for a reasonable amount of time after the I-485 is approved. Aliens who may not be able to take the advantage of the portability rule may still keep their green card if they satisfy the default rule. The issues discussed above are relevant to adjustment of status applications for aliens working under an employer-sponsored I-140 through PERM EB-2, PERM EB-3, EB-1(b) or, EB-1(c). Aliens filing an I-140 based on NIW and EB-1(a) may change employers at any time, as NIW and EB-1(a) petitioners do not need employer sponsorship. *Special thanks to Attorneys Jerry Zhang and Jian Joe Zhou for invaluable comments and contributions. Mr. Stuart Tendler is a legal researcher and writer at Zhang & Associates, P.C. ------ (11/14/2008) For more immigration news, please click here |
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