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To Port, New Employment Must Be

Under certain circumstances, you may be able to file both the I-140 petition and the I-485 application together concurrently without having to first get an approved I-140. This is permitted due to portability provisions under the American Competitiveness in the Twenty-first Century Act of 2002 (AC21). This means that while your I-485 is pending, you may be able to leave your current employer and take a new job in a "same or similar occupational classification" after the I-485 has been pending for at least 180 days. If you have questions about I-140 portability and I-485 concurrent filing, the attorneys at The Law Firm of Shihab & Associates, Co., LPA have decades of combined experience in this area. Contact us for a consultation.

Does a "same or similar" occupation classification need to have the same geographic location?

The answer to this question is no. To determine whether an occupation classification is "same or similar" to your I-140 employment, the inquiry is to consider your new position and job duties and not the geographic location of your new employment.

Is new employment required to have the same wage to be classified as a "same or similar" occupation?

A difference in wage between your I-140 employment and your new employment cannot be a basis for denial of your I-485 adjustment application. However, it is taken into consideration as a factor if there is a significant discrepancy between the previous wage and the new wage.

If I am a multinational manager or executive, do I have portability benefits even if my new employment is with an unrelated company?

Yes, you do have portability benefits when you change to a new job as a manager or executive even for an unrelated company. However, you may not benefit from porting if your new job position is not in the same or similar occupational classification as your I-140 employment, such as a situation where your new job duties are vastly different from your I-140 job duties.

Is it necessary to provide proof of the new employer's "ability to pay?"

No, the relevant inquiry in making a determination of portability is whether the new position is the same or similar occupational classification as your I-140 position. However, the USCIS may seek to confirm the legitimacy of the new employer and the job offer with a Request For Evidence (RFE) to inquire about the public charge issue regarding the adjustment of status application.

Obtaining an approved labor certification process can be a complicated and time consuming process. Taking advantage of the portability provisions of AC21 can be beneficial in the event you decide to leave your current employer and take a new job with a new employer because you can do so without the requirement of a new labor certification, provided that your new job in a "same or similar occupational classification." If you have questions about I-140 portability and I-485 concurrent filing, please contact our immigration attorneys or call The Law Firm of Shihab & Associates, Co., LPA at the nearest office close to you to consult with an attorney.

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