Can Congressman Change Date Of I-485 Interview

What is AC21?

Background:

In 2000, Congress enacted the American Competitiveness in the Twenty-First Century Human activity of 2000[1] (AC21) which, in office, added INA 204(j)
This provision allows sure employment-based adjustment of status applicants experiencing delays in the employment-based adjustment of the condition procedure some flexibility to change jobs or employers while their Application to Register Permanent Residence or Adjust Status (Course 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 chore offer that is in the aforementioned or a similar occupational classification as the job offer for which the petition was filed. The new job offer may be through the same employer that filed the petition or a different employer".

"These provisions are referred to as "portability." Employment-based adjustment applicants who use such benefits are considered to have "ported" the petition filed on their behalf to the new chore offer".

What Types of Jobs are "Portable?"

How Can I Use the Same Priority Date?

General Portability Requirements

To qualify for portability under 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 awaiting petition that is ultimately approved
The petition is filed in the employment-based 1st, 2nd, or 3rd preference category
The bidder's properly filed adjustment application has been pending with USCIS for 180 days or more than at the time USCIS receives the request to port
The new job offer through which the applicant seeks to adjust condition is in the aforementioned or similar occupational nomenclature as the job specified in the petition
The applicant submitted a request to port
The new job offering maybe with the aforementioned petitioner or with an entirely new employer, including self-employment
Applicants can submit the portability asking and evidence with the adjustment application or in any in-person interviews or in response to a request or other detect from USCIS

Annotation:

If the applicant makes a asking to "port" on or after January 17, 2017, the bidder must submit a Confirmation of Bona Fide Job Offer or Request for Job Portability Nether INA Department 204(j) (Form I-485 Supplement J)
If the applicant requested to port before January 17, 2017, the applicant could have requested to port through a letter, since Course I-485 Supplement J did non go into consequence until January 17, 2017

Is Approved Petition Required?

- If USCIS has canonical an bidder'southward Course I-140 petition and the applicant's adjustment awarding remained unadjudicated for 180 days or more (from the adjustment application receipt date), the approved petition remains valid unless the petition'due south approval is afterward substantively revoked
- This applies even if the bidder changes jobs or employers so long as the new offer of employment is in the same or similar occupation
- However, If the adjustment application has been awaiting for less than 180 days, the approved petition cannot be ported for new employment
- In all cases, an offer of employment must take been bona fide and the employer must have had the intent (at the time the petition was approved) to use the beneficiary upon adjustment

In case of revocation, the officeholder 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 request from a petitioner to withdraw a awaiting Form I-140 petition, USCIS problems an acknowledgment of the withdrawal request and denies any corresponding aligning awarding
- However, if the pending petition is approvable and the aligning application 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.[seven]

However, If the adjustment applicant is not eligible nether INA 204(j), the applicant must obtain a new employment-based preference petition in order to file a new adjustment awarding, fifty-fifty if the withdrawal of the original petition occurred after it had been canonical for at least 180 days or a corresponding aligning application was pending for at least 180 days.

When Does the Countdown Outset for 180 Days?

The counting the number of days the adjustment application has been pending begins on the mean solar day the applicant properly filed the aligning application with USCIS and includes every subsequent calendar solar day until USCIS receives the applicant's asking to port (so long as the awarding 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 task offer (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 chore offered in the underlying I-140 immigrant petition (pending or approved) is yet valid and offered to the casher
All requests for AC21 portability of pending I-485 applications where the beneficiary wishes to transfer their pending I-485 to a new employer or job which is "same or similar"

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

Although USCIS cannot deny your I-485 application on the sole basis that yous left your employer earlier 180 days have passed
USCIS tin issue a asking for evidence (RFE) to determine whether the original offer of employment was bonafide
Your sponsor's support could be necessary to respond to the RFE and its refusal to cooperate could mean denial of your I-485 awarding

How to Decide If a New Task is in Aforementioned or Similar Occupational Classification?

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

Same Occupational Classification

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

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 two job offers are in similar occupational classifications, USCIS evaluates whether the jobs share essential qualities or accept a marked resemblance or likeness

In guild to decide if the new task offer is in the same or similar occupational classification as the job 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
Task titles
The required skills and experience
The educational and training requirements
Any licenses or certifications specifically required
The offered wage or bacon
Any other textile and credible evidence relevant to a decision of whether the new position is in the same or a like occupational classification

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

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

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

We wrote a blog on that topic which might assist you make a determination. You can notice that blog hither

Portability rules are circuitous. Contact a reliable clearing attorney to ensure a rubber transition to your new employment.

If you have questions about the adjustment of status or accept questions about the Green Card process in full general, you can schedule a consultation with u.s.:

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

Due to popular need (and a few e-mails from people who could not join the H-1B webinar I hosted a few weeks ago), I decided to have some other H-1B CAP webinar on February 25, 2021, at 12pm (CST).

I will cover the post-obit 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 not make the previous webinar, you can register hither: