by Reuben S. Seguritan

When may an applicant for adjustment of status be allowed to port or change to a new employment? The new employment must be in the same or similar occupational classification as the original job.

The job flexibility provision was in the American Competitiveness in the 21st Century Act of 2000 (AC21) but it was not clear under the law or regulations what “same” or “similar” meant. The guideline memo provided by the USCIS clarifies the procedure in determining eligibility for the job change.

To establish that both jobs are in a similar occupational classification, the applicant may submit proof about the Department of Labor (DOL) occupational classification codes assigned to the jobs; the duties for each job, the skills, experience, education, training, license or certification required for each job; the wages offered and any other relevant evidence. The change to another occupational classification may involve lateral movement, career progression or self-employment.

In determining whether the new job is the same or similar occupational classification as the employment in the initial I-140 petition, the USCIS will look as to whether the jobs are “identical”, resembling in every relevant respect or in the same kind of category or thing.

To be eligible to change or port from one job to another, the beneficiary’s adjustment of status application must have been pending for 180 days or more.

Also, the Form I-140, Immigrant Petition for Alien Worker, must have been approved or is approvable when concurrently filed with the adjustment application. There must be a valid job offer and the beneficiary must be eligible for employment preference classification.

If both the I-140 petition and the I-485 application remain pending for more than 180 days, the beneficiary is not automatically entitled to port. The USCIS must first determine whether the initial I-140 petition is approvable. If USCIS finds that it is, then it will adjudicate the adjustment of status application to determine whether the new position is in the same or similar occupational classification. The I-140 petition must be approved before portability is granted.

If the I-140 petition is subsequently denied, the beneficiary cannot invoke the portability rule.

The USCIS adopted the decision of the Administrative Appeals Office (AAO) in the Matter of Al Wazzan relating to the portability rule as it applies to denied I-140 petitions.

In that case, the applicant insisted that he was entitled to port under AC21 based on his new job offer because his I-485 application had been pending for more than 180 days at the time USCIS denied his application. The I-140 petition filed on his behalf was denied by the USCIS on the ground that the applicant was not entitled to the employment classification sought.

The AAO held that portability rule cannot apply where the I-140 petition is not valid. A denied I-140 petition cannot be considered valid regardless of whether the petition was adjudicated 180 days or more after the filing of the adjustment of status.

An I-140 petition is considered valid if filed on behalf of an alien entitled to the employment classification sought. Put simply, the portability rule cannot apply where there was never a valid petition from which to port.