Changing Employers Or Job Offers Under AC21 Portability Rule

Backlogs and long processing times are regular obstacles in the immigration process. Having your I-485 pending for half a year can be stressful especially with a job change coming up. To relieve some of the stress, applicants should take advantage of Form I-485, Supplement J and the American Competitiveness in the Twenty-First Century Act of October 2000 (AC21 Portability Rule).

What is the AC21 Portability Rule?

According to USCIS, porting means remaining eligible for a green card when changing from one job or employer to another without having to file a new Form I-140, Immigrant Petition for Alien Worker.

The AC21 Portability Rule allows applicants whose I-485 has been pending for 180 days or more the ability to transfer the pending I-485 to a new job or employer. There are several requirements to do so with the most important being the new job meeting the same criteria or similar classification.

AC21 Portability Rule Requirements

To carry out the porting process, you will need to file Form I-485 Supplement J. Supplement J confirms the legitimate job offer available by the employer/employee. Both parties will need to sign this form.

AC21 Criteria for Determining Eligible Job Transfers

To meet the “same or similar” occupational classification required by AC21, USCIS officers take many factors into account including:

• The Department of Labor’s (DOL) Standard Occupational Classification (SOC) System
  • DOL organizes the system by various codes (typically six digits) designed to classify workers into distinct occupational categories. Occupations that require similar skills, job duties, education, or training are grouped together.
• DOL’s Bureau of Labor Statistics’ Occupational Outlook Handbook
• DOL’s Bureau of Labor Statistics’ Occupational Employment Statistics Database
• The job responsibilities of both the existing job and the one you wish to port
• Education, training, experience, and any licenses/certifications necessary to carry out each job
• The salary or wages of both jobs
  • USCIS will also factor in raises or promotions that happen over time, geographic locations of the job, possible company mergers that affect compensation, and any jobs that transfer from for-profit to a non-profit employer
• Any other information or evidence you submit with your porting request

Be aware that USCIS will take all of the above elements into consideration before approving the new position. Do not be misled into thinking that the same SOC code will automatically qualify the two positions as same or similar.

How Does the Portability Rule Deal With Promotions? 

If you get promoted, USCIS maintains the right to reassess if you are still eligible for a green card.

For example, if you move into a more senior but related position which is non-managerial, USCIS will use the criteria explained above to determine the similarity of the positions. Further, if you move into a managerial or supervisory role and establish that the new position involves managing the same or similar occupational classifications as your original position, USCIS may treat such evidence favorably.

When Do I Notify USCIS About a Job Change?

When you have properly ported the new job, it is important to notify USCIS that you have met the AC21 requirements.

We recommend notifying USCIS after starting to work with your new employer or your new position. You can also notify USCIS  if they issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).

The entire porting process involves:

1. Filing Supplement J to request AC21 porting of I-485, Adjustment of Status Application
2. USCIS approving your request based on eligibility
3. Notifying USCIS that the AC21 requirements have been met by filing an AC21 notification

After completing these steps, you are now considered an “affected party” entitled to a notification. Following these steps helps avoid several potential delays to your case including RFEs and NOIDs.

As you can imagine changing employers or job offers under the AC21 portability rule is best handled by an experienced immigration team. To avoid delays and denials, VisaNation Law Group carefully review all your documentation, evidence, and job information. Their work ensures that you have the highest chance of securing approval.