Q:           Can a foreign national port to a new employer or position from an unapproved I 140 petition that was concurrently filed with an I-485 application that has been pending 180 days or more?
A:           Yes. A foreign national can port to a new employer or position in the same or a similar occupational classification if the I-140 petition is or was approvable when filed.

Q:           What is the evidentiary standard for reviewing an I-140 petition?
A:           The evidentiary standard adopted by the United States Citizenship and Immigration Services (USCIS) is a preponderance of the evidence standard. The evidence contained in the I-140 petition must establish that the foreign national's claim is "probably true" or "more likely than not" true.

Q:           How should unapproved I-140 petitions that were concurrently filed with I-485 applications be processed if the I-485 application has been pending 180 days and a Request for Evidence (RFE) has been issued?
A:           The USCIS will refrain from adjudicating an AC21 portability request until a response to the RFE is received. If an RFE response is not received or the RFE response inadequately addresses the issues, the I-485 application and portability request will be denied.

Q:           What is "same or similar" occupational classification for purposes of I-140 portability?
A:           An occupational classification that is the same or similar will have a job description and DOT/SOC code that are closely-related to the job description and DOT/SOC code assigned to the original I-140 position. In making a "same or similar" determination, the USCIS should only take into consideration the description of the job duties, the DOT/SOC codes and any substantial wage discrepancies between the two positions.

Q:           What are DOT codes?
A:           The Dictionary of Occupational Titles (DOT) code system, created by the Department of Labor's Employment and Training Administration and last updated in 1991, is the predecessor to the SOC code system. The DOT code system was created to track and statistically analyze occupation related data.

Q:           What are SOC codes?
A:           The Standard Occupational Classification (SOC) code system, developed by the Department of Labor's Bureau of Labor Statistics, serves a similar purpose to the DOT code system and groups all jobs into one of over 820 occupations according to their occupational definition.

Q:          Can an I-140 portability request be denied based on a difference in geographical location between the labor certification/I-140 position and the new position?
A:           No. The USCIS should only investigate whether the new position is in the same or a similar occupational classification as the labor certification/I-140 position.

Q:           Can an I-140 portability request be denied solely because the wage offered in the approved labor certification/I-140 position is different than the wage for the new position?
A:           No. Wage is only one factor to be considered by the USCIS when making a "same or similar" occupational classification determination.

Q:           Can multinational managers or executives avail themselves of AC21 portability benefits even where the foreign national changes to a new job as a manager for an unrelated company?
A:           Yes. Multinational managers or executives can avail themselves of portability benefits even when the new position is for an unrelated company so long as the new position is in the same or a similar occupational classification.

Q:           Is it appropriate for the USCIS to request proof of "ability to pay" from the new company to which a foreign national had ported?
A:           No. It would only be appropriate for the USCIS to confirm the legitimacy of a new employer and position through an RFE requesting relevant information about these issues.

Q:           Can a foreign national port to self-employment under AC21 law?
A:           Yes, so long as the new position is in the same or similar occupational classification, and the employer and position are legitimate. It is important to note, the USCIS will focus on whether, as of the time of the initial I 140 petition and the I-485 application (if not filed concurrently) filing, the I-140 sponsoring employer and foreign national genuinely intended to undertake an employment relationship upon the foreign national's adjustment of status.

Q:           Must a successor employer in an I-140 portability case provide a new labor certification?
A:           No. The underlying labor certification also remains valid if the conditions for I-140 portability under AC21 106c are met.

Q:           When is an I-140 petition no longer valid for porting purposes?
A:           An I-140 petition is no longer valid for porting purposes if it is withdrawn by the employer before the foreign national's I-485 application was pending for 180 days or more, or if the I-140 petition is denied or revoked (not including revocation due to employer withdrawal that was executed after the I-485 application was pending for 180 days or more).

Q:           For portability purposes, can the 180 days that an I-485 application must be pending accrue during a period when immigrant visa numbers are unavailable?
A:           Yes. The number of days required for I-140 portability does not stop accruing because visa numbers become unavailable after the filing of the I-485 application.

Q:           Does a foreign national's priority date change as a result of porting to a new position or employer under AC21 106c?
A:           No. The priority date is always determined when the initial labor certification application is filed with the U.S. Department of Labor or, in cases where no labor certification is required, at the time the I-140 petition is filed with the USCIS.

Q:           Is it necessary for the foreign national to have a new offer of employment at the time the I-485 is being adjudicated under the I-140 portability provisions?
A:           Yes. The foreign national must have a legitimate offer of employment in the "same or similar" occupational classification to qualify for AC21 portability.

Q:           How can a foreign national beneficiary submit a request to change employers?
A:           The foreign national or the representative of record for the I-485 application should send a letter from the new employer describing the job title, duties, minimum educational or training requirements, salary and the date the foreign national began the new position. The letter must be signed by someone who is authorized to make or confirm an offer of employment, and be accompanied by a copy of the I-140 petition approval notice or receipt notice and a copy of the I-485 receipt notice.

Q:           What does the Matter of Al Wazzan case stand for?
A:           The Matter of Al Wazzan case established that a foreign national is not eligible for I-140 portability if their I-140 petition is denied or deniable at the time of filing, regardless of whether the portability request was made after the related I-485 application was pending for 180 days or more.

Q:           What is the jurisdiction of immigration judges to apply the portability provisions?
A:           The Fourth, Fifth and Sixth Circuit Courts have all held that immigration judges do have the authority to determine whether a foreign national's new job is in the same or a similar occupational classification as the job approved in the I-140 petition and, accordingly, whether the foreign national's approved I-140 petition remains valid under Section 204(j) of the INA. The other Circuit Courts have yet to address the issue.

Q: What are the requirements for I-140 portability under AC21 106c?
A:           An approved I-140 petition will remain valid when a foreign national changes jobs or employers if the I-485 application has been pending for 180 days or more and the new job is in the same or a similar occupational classification as the original labor certification/I-140 position.

Q:           Does a foreign national need an attorney when porting to a new employer under AC21 rules?
A:           A foreign national is not required by AC21 to have a lawyer when porting to a new position or employer, but it is highly recommended that an experienced immigration attorney be consulted to avoid any unintended negative consequences due to the complexity of AC21 law.

Q:           What procedure will the USCIS follow if they do not have a record of the new offer of employment for I-140 portability?
A:           If evidence of a new qualifying offer of employment has not been received by the USCIS, a Notice of Intent to Deny (NOID) the pending I-485 application will be issued. A timely response to the NOID, containing the evidence necessary to prove there is a new offer of employment in the same or a similar occupational classification, will be required in order for the underlying I-140 petition to remain valid.

Q:           What are the reasons an I-140 petition can be invalidated or revoked?
A:           The USCIS can revoke a previously approved I-140 petition if they determine fraud was involved or if the petition should not have been approved originally. The I-140 petition can also be invalidated if the underlying labor certification is subsequently revoked due to fraud or a willful misrepresentation of a material fact.

Q:           What is the purpose of the I-140 portability provisions of AC21?
A:           The I-140 portability provisions of AC21 allow employment-based adjustment of status applicants, whose applications have been significantly delayed, flexibility to change jobs or employers prior to the approval of their adjustment of status application.

Q:           How many times can a foreign national avail themselves of the portability provisions under AC21 106c?
A:           There is no statutory limit to the number of times a foreign national can avail themselves of the AC21 106 c portability provisions.

Q:           What is I-140 portability?
A:           Essentially, I-140 portability allows a foreign national (under certain circumstances) to maintain the validity of their I 140 petition even if they are no longer working for the original labor certification/I-140 sponsoring employer or in the original labor certification/I-140 position.

Q:           Can an I-140 portability request be denied solely because the foreign national has left his or her employment with the I-140 petitioner prior to the I-485 application pending for 180 days?
A:           No. Changing employers before the I-485 application has been pending 180 days alone is insufficient to deny an adjustment of status application. However, if the I-140 petition is revoked at any time the I-485 application may be denied, or if the I-140 petition is withdrawn by the previous employer before the I-485 reaches 180 days the application will likely be denied.

Q:           Is there any information the new employer sponsor is required to automatically provide to the USCIS for I 140 portability under AC21 106c?
A:           The new employer is not required to provide any specific information for I-140 portability, but the USCIS must be convinced that the new employer and position are legitimate, as well as that the new position is in the same or a similar occupational classification. This information, if not provided, may be requested in an RFE.