The American Competitiveness in the Twenty-First Century Act, Section 106(c) (AC21 106c) provides for the continued validity of an approved I-140 petition when a foreign national changes jobs or employers if the following conditions are met:

• Form I-485, Application To Adjust Status, has been filed and remains 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.

The portability provisions under AC21 106c are quite complex and matters can become especially complicated when a foreign national attempts to port to a new employer or position before their I-140 petition has been approved. As discussed below, the law in this area is extremely convoluted and it is highly recommended that an experienced immigration attorney be consulted anytime benefits are sought pursuant to AC21 law, particularly AC21 portability.

Unapproved I-140 Petition And I-485 Pending 180 Days

In certain situations, the I-140 petition and I-485 application may have been filed concurrently and, therefore, both remain pending for 180 days or more. It is important to note, the elapse of 180 days beyond the filing of an I-485 application does not automatically validate an unapproved I 140 petition for AC21 portability purposes. To qualify for I-140 portability, a pending I-140 petition must be, or have been, approvable when filed. Under no circumstances will a denied I 140 petition be considered valid for I-140 portability purposes.

Evaluating Unadjudicated I-140 Petitions

If a foreign national attempts to port to a new employer or position from an unapproved I-140 petition, the United States Citizenship and Immigration Services (USCIS) must first review and adjudicate the I-140 petition. Under AC21 rules, the I-140 petition must be approved in order to receive a favorable USCIS determination on an I-140 portability request. If the I-140 petition is approved, the USCIS will then undertake an analysis of whether the new position is in the same or a similar occupational classification as the labor certification/I-140 position.

Preponderance Of The Evidence Standard

When reviewing a pending I-140 petition to determine AC21 portability, the USCIS will apply a preponderance of the evidence standard. This means 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. If the I-140 petition meets this rather lenient standard, it will be approved by the USCIS.

Ability To Pay

If the I-140 petition is approvable but for an ability to pay issue, or some other issue that arises due to the passage of time after filing, the USCIS should approve the I-140 petition on it's merits. Likewise, upon porting to a new employer or position from an approved I-140 petition, it is inappropriate for a USCIS adjudicator to reopen the "ability to pay" inquiry or request proof of the new employer's ability to pay.

Matter of Al Wazzan

On October 18, 2005, the USCIS adopted the Administrative Appeals Office's (AAO) decision in Matter of Al Wazzan. The Matter of Al Wazzan case established that an "unadjudicated Form I-140 petition is not made 'valid' merely through the act of filing the petition with USCIS or through the passage of 180 days." To put it another way, 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. Due to the complexity associated with AC21 law, one should always discuss the particulars of their case with experienced immigration counsel to avoid potential problems in the immigration process.