What if You Lose Job While I485 Family Based Is in Process

What is AC21?

Background:

In 2000, Congress enacted the American Competitiveness in the Twenty-First Century Deed of 2000[1] (AC21) which, in part, added INA 204(j)
This provision allows certain employment-based adjustment of status applicants experiencing delays in the employment-based aligning of the status process some flexibility to change jobs or employers while their Application to Register Permanent Residence or Conform Condition (Form I-485) is pending

"If eligible under INA 204(j), the Immigrant Petition for Alien Workers (Form I-140) (and underlying permanent labor certification, if applicable) may remain valid and the beneficiary of an approved employment-based immigrant visa petition in the 1st, 2nd, or 3rd preference category may transfer, or "port," to a qualifying new job offer that is in the aforementioned or a like occupational classification as the job offer for which the petition was filed. The new chore offer may exist through the aforementioned employer that filed the petition or a different employer".

"These provisions are referred to equally "portability." Employment-based adjustment applicants who employ such benefits are considered to accept "ported" the petition filed on their behalf to the new task offering".

What Types of Jobs are "Portable?"

How Can I Use the Aforementioned Priority Date?

Full general Portability Requirements

To qualify for portability nether INA 204(j), the aligning applicant must encounter the following eligibility requirements:

The applicant is the beneficiary of an canonical Form I-140 petition or of a pending petition that is ultimately canonical
The petition is filed in the employment-based 1st, 2nd, or 3rd preference category
The bidder'southward properly filed adjustment awarding has been pending with USCIS for 180 days or more at the time USCIS receives the asking to port
The new job offer through which the bidder seeks to accommodate status is in the aforementioned or similar occupational classification equally the job specified in the petition
The bidder submitted a request to port
The new task offer perchance with the same petitioner or with an entirely new employer, including self-employment
Applicants tin submit the portability asking and bear witness with the adjustment application or in any in-person interviews or in response to a asking or other notice from USCIS

Note:

If the bidder makes a request to "port" on or after January 17, 2017, the applicant must submit a Confirmation of Bona Fide Chore Offer or Asking for Job Portability Under INA Section 204(j) (Form I-485 Supplement J)
If the applicant requested to port before Jan 17, 2017, the applicant could have requested to port through a letter of the alphabet, since Course I-485 Supplement J did not go into effect until Jan 17, 2017

Is Canonical Petition Required?

- If USCIS has approved an bidder's Grade I-140 petition and the applicant's adjustment application remained unadjudicated for 180 days or more (from the aligning application receipt appointment), the approved petition remains valid unless the petition's approval is later substantively revoked
- This applies fifty-fifty if the applicant changes jobs or employers then long as the new offer of employment is in the same or similar occupation
- However, If the adjustment application has been pending for less than 180 days, the canonical petition cannot exist ported for new employment
- In all cases, an offer of employment must take been bona fide and the employer must take had the intent (at the time the petition was approved) to apply the casher upon adjustment

In case of revocation, the officer adjudicating the adjustment application may deny the adjustment application and Supplement J request.

What if the Petition is Withdrawn by My Previous Employer?

- If USCIS receives a asking from a petitioner to withdraw a awaiting Form I-140 petition, USCIS issues an acquittance of the withdrawal request and denies any respective adjustment application
- However, if the pending petition is approvable and the aligning awarding was pending for 180 days or more, the petition may remain valid for priority date retention and possible eligibility under INA 204(j) for the adjustment application.[7]

However, If the adjustment applicant is non eligible nether INA 204(j), the applicant must obtain a new employment-based preference petition in gild to file a new adjustment application, fifty-fifty if the withdrawal of the original petition occurred after it had been approved for at least 180 days or a corresponding aligning application was awaiting for at least 180 days.

When Does the Inaugural Commencement for 180 Days?

The counting the number of days the adjustment awarding has been pending begins on the solar day the applicant properly filed the adjustment application with USCIS and includes every subsequent calendar solar day until USCIS receives the applicant's asking to port (so long as the application remains unadjudicated).

What is the Purpose of I-485 Supplement J and the AC-21 Portability Process?

The purpose of I-485 Supplement J is to provide a confirmation of the bona fide job offering (during initial I-485 filing) or to inform USCIS in I-485 porting cases under AC-21 (for pending I-485 cases)

Who Needs to File Form I-485 Supplement J?

For all new I-485 filings where it is used to confirm that the job offered in the underlying I-140 immigrant petition (pending or approved) is still valid and offered to the beneficiary
All requests for AC21 portability of awaiting I-485 applications where the beneficiary wishes to transfer their pending I-485 to a new employer or chore which is "same or like"

Is it Necessary For My I-485 Application to be Awaiting for More 180 days if I have an Approved I-140?

Although USCIS cannot deny your I-485 application on the sole basis that you left your employer before 180 days take passed
USCIS can issue a request for testify (RFE) to decide whether the original offer of employment was bonafide
Your sponsor'south back up could exist necessary to reply to the RFE and its refusal to cooperate could mean denial of your I-485 application

How to Determine If a New Job is in Aforementioned or Similar Occupational Classification?

"To determine whether a new job offer is valid for purposes of INA 204(j) portability, the new job offer must exist in either the same occupational classification or a similar occupational nomenclature every bit the job specified in the underlying Form I-140 petition".

Same Occupational Nomenclature

An occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was canonical.[17]
Appropriately, USCIS evaluates whether the jobs are identical, resembling in every relevant respect, or the aforementioned kind of category or thing when determining whether two job offers are in the same occupational classification

Similar Occupational Classification

An occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.[18]
When determining whether 2 job offers are in like occupational classifications, USCIS evaluates whether the jobs share essential qualities or have a marked resemblance or likeness

In order to determine if the new job offer is in the aforementioned or similar occupational nomenclature every bit the chore listed on the petition, officers evaluate various factors.

Relevant Factors Include:

The U.S. Department of Labor (DOL) occupational codes assigned to the respective jobs;
Job duties
Job titles
The required skills and experience
The educational and training requirements
Whatever licenses or certifications specifically required
The offered wage or salary
Any other cloth and apparent evidence relevant to a determination of whether the new position is in the same or a similar occupational classification

Note: A change to the aforementioned or a similar occupational classification may involve lateral movement, career progression, or porting to cocky-employment, either in the same or a different geographic location.

Should I Keep both I-485 and H1-B/L1 or H4?

It is also great to take both H1-B, L1, or H4, and I-485 if possible. It is a great contingency, if there is a sudden chore loss or the possibility of being out of status, firsthand availability of an EAD and AP would definitely aid you lot avoid whatsoever violations.

Nosotros wrote a blog on that topic which might help y'all make a conclusion. You can notice that blog here

Portability rules are circuitous. Contact a reliable immigration attorney to ensure a safe transition to your new employment.

If you have questions about the adjustment of condition or have questions well-nigh the Green Carte du jour procedure in general, you lot can schedule a consultation with usa:

Schedule a call at 469-994-9407 or contact us using the form .

Due to popular demand (and a few due east-mails from people who could non join the H-1B webinar I hosted a few weeks ago), I decided to have another H-1B CAP webinar on February 25, 2021, at 12pm (CST).

I will encompass the following topics:

H-1B Registration
Data about the selection process
H-1B Requirements for the Employer and the Employee
Tips to avoid an RFE
Considerations for OPT students
Q &A

If you are interested, and could non make the previous webinar, you can annals here:

lewisyestu1955.blogspot.com

Source: https://ustunlawgroup.com/changing-jobs-after-filing-i-485-with-ac-21/