AC21: Successful I-140 Portability
With the implementation of The American Competitiveness in the Twenty-First Century Act (AC21) came enhanced portability for foreign nationals whose application for adjustment of status was long delayed. In other words, a foreign national, whose I-485 application has been pending for 180 days or more, may still be eligible for employment-based adjustment of status (I-485 approval) even though they are no longer working for the I-140 petitioning employer or in the labor certification/I-140 position.
Essentially, I-140 portability allows a foreign national 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. The requirements for I 140 portability, however, can be quite complex as discussed below. It is highly advisable to seek the assistance of an experienced immigration attorney when dealing with AC21 portability issues to avoid unnecessary delays or possible negative consequences in the permanent resident process.
Same Or Similar Occupational Classification
To successfully move to a new position pursuant to I-140 portability, a foreign national's new position must be in the same or a similar occupational classification. There are three key criteria the United States Citizenship and Immigration Services (USCIS) adjudicators take into account when determining whether two jobs are in the same or a similar occupation classification:
- Job descriptions
- Dictionary of Occupational Titles (DOT) or Standard Occupational Classification (SOC) codes
The USCIS adjudicators will compare the job duties in the labor certification/I-140 petition with the job duties for the new position. The more closely the job descriptions for the two positions mirror one another, the more likely the jobs are in the same or a similar occupational classification.
Similarly, USCIS adjudicators will examine the DOT or SOC code assigned to each position. The closer the DOT/SOC codes, the more likely the positions are in the same or a similar occupational classification. The DOT/SOC code is typically assigned when a labor certification is required prior to filing the I-140 petition, but the USCIS adjudicator will consider what DOT/SOC code would be appropriate if none is assigned.
The DOT and SOC systems were created to track and statistically analyze occupation related data. The DOT system, created by the Department of Labor's Employment and Training Administration and last updated in 1991, is the predecessor to the SOC system. The SOC system, developed by the Department of Labor's Bureau of Labor Statistics, groups all jobs into one of over 820 occupations according to their occupational definition.
A discrepancy in wage between the labor certification/I-140 position and the new position is not a justifiable basis alone to deny an I-485 adjustment of status application in portability cases. However, a large discrepancy between the new position wage and the labor certification/I-140 position wage can be a "red flag" to USCIS adjudicators that the positions may not be in the same or a similar occupational classification. Accordingly, USCIS adjudicators are allowed to take wage discrepancies into consideration, but cannot use them as the sole basis for denying an adjustment application in a portability case.
The geographic location of the new position does not impact the analysis of I-140 portability. So long as the new position satisfies the same or a similar occupational classification requirement, the new position can be in the same or a different geographic location.
A foreign national can "port" to self-employment if the same or similar occupational classification requirement is met, but it is important to note that additional legal complexities arise when dealing with self-employment. The USCIS will require evidence, likely through an RFE, proving that the self-employment position and employer are both legitimate.
Further, porting to self-employment may raise legal questions regarding the true intention behind the I 140 petition. For employer sponsored adjustment of status, the I 140 petitioning employer and foreign national beneficiary must have genuinely intended, at the time both the I-140 petition and I-485 application were filed, to undertake an employment relationship upon the foreign national's adjustment of status. The I-140 documents must support this assumption or additional evidence may be requested by the USCIS. Again, there are many sophisticated legal issues surrounding self-employment, and AC21 rules in general, and it is highly recommended that assistance from an experienced immigration attorney be sought to avoid delays or possible negative consequences in the immigration process.