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Portability
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Adjustment Portability

Adjustment portability was created as part of the year 2000 US immigration law amendments. This information applies to foreign nationals who currently have an employment based I-485 Adjustment of Status (green card) Petition pending with the US Citizenship and Immigration Service (CIS), who may want to or need to change to a similar position with a different employer.

Background

Traditionally, all employer sponsored green card applications were employer, employee, job duty and job location specific. If any one of these elements had any material change, prior to green card issuance, the application had to be re-filed, with resulting lengthy delays by restarting the entire process.

Currently, there are no regulations implementing this new law. The CIS regulation process, including publication and comment phases, is notoriously slow. Accordingly, there are no binding CIS implementation guidelines, which can be safely relied upon. Non-binding CIS memos have been issued, but the Service follows these only to the extent the memos do not change, and no Regulations are published. Our experience and attendance at discussions with CIS officials on this subject have prompted our strong caution when utilizing this provision. It is our opinion that Adjustment portability should be used cautiously and carefully, and utilized only with the prior assistance of experienced counsel.

Requirements

The Adjustment portability provision still requires that the candidate continue to work in the same or similar field doing the same or very similar job for a similar salary, even if the employer and job location have changed. In order for us to evaluate any candidate seeking to utilize this provision, we require the following:

  • Description of proposed new company position, salary, and work location address.
  • Copies of all of the applicant's prior petitions with the current sponsoring employer, underlying the pending adjustment with the initial employer, including: the Labor Certification, copy of I-140 Petition and approval, copy of I-485 Adjustment Petition (individual and all family dependents) first page, and Adjustment INS receipt, Employment Authorization Card, as well as a copy of all prior non immigrant immigration classifications approvals (F-1, J-1, H-1B, etc.) including I-94 Cards and Visas.
  • The individual MUST have a current valid Advance Parole document under that Adjustment Petition, if he/she desires to travel internationally during Adjustment processing for any reason (the same would be true for dependants), since the underlying Nonimmigrant status (H-1B, etc.) ends once he/she changes employers.
  • The individual's Adjustment of Status Petition must have been pending for at least 6 months and the underlying I-140 must have been approved.

Caveats

In each case, the new employer and Adjustment applicant need to understand that if the rules for Adjustment of Status portability change, or if the individual's Adjustment is denied for any reason, then a major effort would be necessary as part of that process. The new employer would either have to terminate the employee, or sponsor him/her for temporary Nonimmigrant Status (H-1B), and a possible green card down the road. The ability to do this will be limited to the remaining period of time available on H-1B eligibility (generally a 6 year maximum), and a final CIS finding in the current adjustment case (i.e.: findings of fraud are a permanent bar to any US status). An immediate overseas assignment (where possible), in some cases, may be the only option where that employee can remain employed with the new employer.

 
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