Table of Contents
Overview of the Employment Based Permanent Residency Application
For many foreign nationals applying in the employment-based preference categories, the permanent resident or green card process consists of three key steps:
- Labor certification; Required in all EB-3 petitions and most EB-2 petitions
- I-140 Immigrant Petition for Alien Worker (I-140 Immigrant Petition); and
- I-485 Application to Register Permanent Residence or Adjust Status (I-485 Application) or consular processing of an immigrant visa.
Before a foreign national in the EB-2 or EB-3 category can apply for consular processing of an immigrant visa or adjust status, they must have an approved I-140 Immigrant Petition. The I-140 Immigrant Petition can be filed once the labor certification, if required, has been approved. The last step in the green card process can be completed when a foreign national’s priority date is current on both the U.S. Department of State’s and U.S. Citizenship and Immigration Services (USCIS)’ monthly Visa Bulletin. At that time, the foreign national may either file an I-485 Application to adjust status if in the U.S. or proceed with consular immigrant visa processing if outside of the U.S.
Each year approximately 140,000 employment-based immigrant visas are available for foreign nationals seeking to immigrate to the U.S. based on their job skills. As there are inevitably more foreign nationals seeking permanent residence than immigrant visas available, the U.S. Citizenship and Immigration Services (USCIS) utilizes a system to allocate visas according to preference categories and countries of birth.
EMPLOYMENT-BASED PREFERENCE CATEGORIES
To fully understand the U.S. immigrant visa system for employment-based visas, it is important to appreciate the different employment preference categories. There are five employment-based preference categories:
- EB-1: The first preference category is reserved for foreign nationals of extraordinary ability in the sciences, arts, education, business, or athletics as demonstrated through sustained national or international acclaim; outstanding professors and researchers who can demonstrate international recognition for their outstanding achievements in a particular academic field; or multinational managers or executives. The first preference category receives up to 28.6% of the annual number of visas available worldwide, including any unused visas remaining in the fourth and fifth preference categories. No Labor Certification required.
- EB-2: The second preference category is for foreign nationals that possess, and whose positions require, an advanced degree or a Bachelor’s degree plus five years of progressive experience; or foreign nationals that have “exceptional ability” – a degree of expertise significantly above that ordinarily encountered – in the sciences, arts, or business. The second preference category receives up to 28.6% of the annual number of visas available worldwide, including any unused visas remaining in the first preference category. Most applicants in this category require the filing of a Labor Certification unless you can obtain a National Interest Waiver.
- EB-3: The third preference category applies to professionals that possess a Bachelor’s degree or higher and are working in a position for which an insufficient number of qualified U.S. workers are available; or certain skilled and unskilled workers that are working in a position for which there are an insufficient number of qualified U.S. workers available. The third preference category receives up to 28.6% of the annual number of visas available worldwide, including any unused visas remaining in the first and second preference categories.
- EB-4: The fourth preference category is reserved for special immigrants including religious ministers and workers, broadcasters, Iraqi/Afghan translators, Iraqis who have assisted the U.S., international organization employees, physicians, armed forces members, Panama Canal Zone employees, retired NATO-6 employees, and spouses and children of deceased NATO-6 employees. The fourth preference category receives up to 7.1% of the annual number of visas available worldwide. No Labor Certification required.
- EB-5: The fifth preference category is for certain foreign national business investors who have invested a significant amount of money (either $1,000,000 or $500,000 if the investment is made in a “targeted employment area”) in a new commercial enterprise that employs at least 10 full-time U.S. workers. The fifth preference category receives up to 7.1% of the annual number of visas available worldwide. No Labor Certification required.
“PER COUNTRY” VISA QUOTAS
In addition to the limits placed on the number of employment-based immigrant visas available overall, there are “per country” quotas placed on the number of visas allocated to any country. These per country limits are designed to prevent individuals born in any one country, regardless of the individual’s citizenship, from receiving more than 7% of the total number of employment-based and family-based visas available annually. Moreover, no more than 2% of the annual visas available can be issued to dependents born in any one country.
The U.S. Department of State issues a monthly Visa Bulletin that summarizes the availability of immigrant numbers during that specific month for both family-based and employment-based visas. The Visa Bulletin will indicate whether each preference category cross-referenced with a country is “current,” “oversubscribed,” or “unavailable” – those with a “current” priority date may apply for an immigrant visa. Further, the Visa Bulletin includes “Final Action Dates” and “Dates for Filing Applications.” Unless otherwise indicated by the U.S. Citizenship and Immigration Services (USCIS), individuals seeking to file applications must use the “Final Action Dates” when determining if they can apply. If USCIS determines there are more immigrant visas available for the fiscal year than there are known applicants, USCIS will indicate that applicants may instead use the “Dates for Filing Applications.”
If the preference category for a specific country is oversubscribed, a cut-off date will appear on the Visa Bulletin. In such categories, the USCIS will only accept I-485 Applications or proceed with consular processing for individuals with priority dates prior to the cut-off date. For example, the June 2020 Visa Bulletin may state that the cut-off date for individuals born in India in the EB-2 category is June 12, 2009. Thus, the USCIS will only accept I-485 Applications or proceed with consular processing for individuals with priority dates before June 12, 2009.
Priority Date Explained
Though the I-140 Immigrant Petition cannot be filed until the labor certification is approved, the date the labor certification is filed with the Department of Labor (DOL) establishes a foreign national’s priority date. If no labor certification is required, the date the I-140 Immigrant Petition is filed becomes the priority date. The priority date is essentially a foreign national’s “place in line” for adjustment of status or consular immigrant visa processing. Once a foreign national’s priority date is current on the Visa Bulletin, the foreign national is eligible to complete the green card process.
Due to lengthy adjudication times, it is possible that a foreign national may change employers or positions prior to the completion of the green card process. A change in position and/or employer will generally require the filing of a new labor certification and I-140 Immigrant Petition if the foreign national does not intend to return to the previous employer/position. Further, if a foreign national in the EB-3 category is promoted to an EB-2 position, they may desire to file a new labor certification and I-140 Immigrant Petition if processing times in the EB-2 category are quicker.
Fortunately, if a foreign national’s original I-140 Immigrant Petition has been approved in the first, second, or third employment-based preference category, their priority date can be transferred to a newly filed labor certification/I-140 Immigrant Petition in the first, second, or third employment-based preference category. Additionally, the transferability of a priority date may not be affected if the previous employer subsequently withdraws the original, approved I-140 petition. It is important to note that a priority date will only be transferable if the original I-140 Immigrant Petition has been approved.
To illustrate, a foreign national may have an approved labor certification from an EB-3 PERM filed in 2005 and an approved I-140 Immigrant Petition. The foreign national is then promoted to an EB 2 position and an EB-2 PERM is filed in 2009. Since the original I-140 Immigrant Petition has been approved, the foreign national can transfer their 2005 priority date to the EB-2 PERM filed in 2009. It is incumbent upon the petitioning party, however, to notify USCIS of the earlier priority date and request the earlier priority date be transferred to the new petition.
AC21: Successful I-140 Portability
With the implementation of The American Competitiveness in the Twenty-First Century Act (AC21) came enhanced portability for foreign nationals whose application for adjustment of status was long delayed. In other words, a foreign national, whose I-485 application has been pending for 180 days or more, may still be eligible for employment-based adjustment of status (I-485 approval) even though they are no longer working for the I-140 petitioning employer or in the labor certification/I-140 position.
Essentially, I-140 portability allows a foreign national to maintain the validity of their I-140 petition even if they are no longer working for the original labor certification/I-140 sponsoring employer or in the original labor certification/I-140 position. The requirements for I-140 portability, however, can be quite complex as discussed below. It is highly advisable to seek the assistance of an experienced immigration attorney when dealing with AC21 portability issues to avoid unnecessary delays or possible negative consequences in the permanent resident process.
SAME OR SIMILAR OCCUPATIONAL CLASSIFICATION
To successfully move to a new position pursuant to I-140 portability, a foreign national’s new position must be in the same or a similar occupational classification. There are three key criteria the U.S. Citizenship and Immigration Services (USCIS) adjudicators consider when determining whether two jobs are in the same or a similar occupation classification:
- Job descriptions
- Dictionary of Occupational Titles (DOT) or Standard Occupational Classification (SOC) codes
The USCIS adjudicators will compare the job duties in the labor certification/I-140 petition with the job duties for the new position. The more closely the job descriptions for the two positions mirror one another, the more likely the jobs are in the same or a similar occupational classification.
Similarly, USCIS adjudicators will examine the DOT or SOC code assigned to each position. The closer the DOT/SOC codes, the more likely the positions are in the same or a similar occupational classification. The DOT/SOC code is typically assigned when a labor certification is required prior to filing the I-140 petition, but the USCIS adjudicator will consider what DOT/SOC code would be appropriate if none is assigned.
The DOT and SOC systems were created to track and statistically analyze occupation related data. The DOT system, created by the Department of Labor’s Employment and Training Administration and last updated in 1991, is the predecessor to the SOC system. The SOC system, developed by the Department of Labor’s Bureau of Labor Statistics, groups all jobs into one of over 820 occupations according to their occupational definition.
A discrepancy in wage between the labor certification/I-140 position and the new position is not a justifiable basis alone to deny an I-485 adjustment of status application in portability cases. However, a large discrepancy between the new position wage and the labor certification/I-140 position wage can be a “red flag” to USCIS adjudicators that the positions may not be in the same or a similar occupational classification. Accordingly, USCIS adjudicators are allowed to take wage discrepancies into consideration but cannot use them as the sole basis for denying an adjustment application in a portability case.
The geographic location of the new position does not impact the analysis of I-140 portability. So long as the new position satisfies the same or a similar occupational classification requirement, the new position can be in the same or a different geographic location.
A foreign national can “port” to self-employment if the same or similar occupational classification requirement is met, but it is important to note that additional legal complexities arise when dealing with self-employment. The USCIS may require additional evidence proving that the self-employment position and employer are both legitimate.
Further, porting to self-employment may raise legal questions regarding the true intention behind the I-140 petition. For employer-sponsored adjustment of status, the I-140 petitioning employer and foreign national beneficiary must have genuinely intended, at the time both the I-140 petition and I-485 application were filed, to undertake an employment relationship upon the foreign national’s adjustment of status. The I-140 documents must support this assumption or additional evidence may be requested by the USCIS. Again, there are many sophisticated legal issues surrounding self-employment, and AC21 rules in general, and it is highly recommended that assistance from an experienced immigration attorney be sought to avoid delays or possible negative consequences in the immigration process.
AC21: I-140 Approvable When Filed
The American Competitiveness in the Twenty-First Century Act, Section 106(c) (AC21 106c) provides for the continued validity of an approved I-140 petition when a foreign national changes jobs or employers if the following conditions are met:
- Form I-485, Application To Adjust Status, has been filed and remains pending for 180 days or more; and
- The new job is in the same or a similar occupational classification as the original labor certification/I-140 position.
The portability provisions under AC21 106c are quite complex and matters can become especially complicated when a foreign national attempts to join a new employer or position before their I-140 petition has been approved. As discussed below, the law in this area is extremely convoluted and it is highly recommended that an experienced immigration attorney be consulted anytime benefits are sought pursuant to AC21 law, particularly AC21 portability.
UNAPPROVED I-140 PETITION AND I-485 PENDING 180 DAYS
In certain situations, the I-140 petition and I-485 application may have been filed concurrently and, therefore, both remain pending for 180 days or more. It is important to note that the passage of 180 days beyond the filing of an I-485 application does not automatically validate an unapproved I-140 petition for AC21 portability purposes. To qualify for I-140 portability, a pending I-140 petition must be, or have been, approvable when filed.
EVALUATING UNADJUDICATED I-140 PETITIONS
If a foreign national attempts to join a new employer or position from an unapproved I-140 petition, the U.S. Citizenship and Immigration Services (USCIS) must first review and adjudicate the I-140 petition. Under AC21 rules, the I-140 petition must be approved to receive a favorable USCIS determination on an I-140 portability request. If the I-140 petition is approved, the USCIS will then undertake an analysis of whether the new position is in the same or a similar occupational classification as the labor certification/I-140 position.
PREPONDERANCE OF THE EVIDENCE STANDARD
When reviewing a pending I-140 petition to determine AC21 portability, the USCIS will apply a preponderance of the evidence standard. This means the evidence contained in the I-140 petition must establish that the foreign national’s claim is “probably true” or “more likely than not” true. If the I-140 petition meets this rather lenient standard, it will be approved by the USCIS.
ABILITY TO PAY
If the I-140 petition is approvable but for an ability to pay issue, or some other issue that arises due to the passage of time after filing, the USCIS should approve the I-140 petition on its merits. Likewise, upon porting to a new employer or position from an approved I-140 petition, it is inappropriate for a USCIS adjudicator to reopen the “ability to pay” inquiry or request proof of the new employer’s ability to pay.
AC21: I-140 No Longer Valid For Portability
Despite the greater job flexibility offered under Section 106(c) of the American Competitiveness in the Twenty-First Century Act (AC21 106c), there are a number of situations where the I-140 petition will no longer be considered valid for AC21 portability purposes, including:
- The I-140 petition is withdrawn before the I-485 application has been pending for 180 days or more;
- The approved I-140 petition is subsequently revoked by the U.S. Citizenship and Immigration Services (USCIS); or
- The I-140 petition is denied.
Due to the complexities involved, it is important to always consult with an experienced immigration attorney regarding the circumstances of your case to avoid errors that can jeopardize your immigration.
I-140 WITHDRAWN PRIOR TO 180 DAYS
In the event an I-140 petition (approved or unapproved) is withdrawn by the employer or revoked by the USCIS prior to the I-485 application pending for 180 days, the I-140 petition will no longer be valid for AC21 portability purposes. Further, it is also within the discretion of the USCIS adjudicator to deny the I-485 application immediately upon the withdrawal or revocation of the I-140 petition if the I-485 application has been pending less than 180 days.
APPROVED I-140 WITHDRAWN
Under certain circumstances, an employer may withdraw an approved I-140 petition if the foreign national beneficiary accepts employment with another employer in the same or a similar occupation. If an approved I-140 petition is withdrawn, it will nonetheless remain valid for AC21 portability purposes so long as the associated I-485 application has been pending for 180 days or more.
When an I-140 sponsoring employer requests that an approved I-140 petition be withdrawn, the USCIS will check whether evidence that the new position is in the same or a similar occupational classification has been submitted. If evidence of a new qualifying offer of employment has not been received by the USCIS, a Notice of Intent to Deny (NOID) the pending I-485 application may be issued. A timely response to the NOID, containing the evidence necessary to prove there is a new offer of employment in the same or a similar occupational classification, will be required in order for the underlying I-140 petition to remain valid. The USCIS adjudicator has, within his or her discretion, the ability to immediately deny a pending I-485 application if there is no response to the NOID or the response fails to adequately show a valid offer of employment in the same or a similar occupational classification.
REASONS FOR I-140 REVOCATION FRAUD OR ERRONEOUS APPROVAL
The USCIS can revoke a previously approved I-140 petition, and immediately deny the corresponding I-485 application, if they determine fraud was involved or if the petition should not have been approved originally. The foreign national beneficiary does not have to be working for the I-140 sponsoring company prior to the approval of the I-485 application. However, an I-140 petition will be considered fraudulent if the sponsoring employer and foreign national beneficiary did not truly intend to engage in a bona fide employment relationship upon the approval of the I-485 application. The sponsoring employer and foreign national beneficiary must have genuinely intended to undertake the employment relationship at both the I-140 petition and I-485 application filing stages (if not filed concurrently).
REVOCATION OR INVALIDATION OF THE LABOR CERTIFICATION
Revocation of an approved I-140 petition may also be premised upon the invalidation of the underlying labor certification. The Department of Labor may revoke an approved labor certification upon finding that the initial certification was not justified. Likewise, the Department of State and/or the Department of Homeland Security may invalidate a previously approved labor certification if it is determined that there was fraud or a willful misrepresentation of a material fact in the labor certification application. If the labor certification supporting the I-140 petition is subsequently revoked or invalidated, the I-140 petition is no longer valid.
If a pending I-140 petition is denied, it is no longer valid for AC21 portability purposes. The timing of the denial is not taken into consideration by the USCIS. Accordingly, even if the I-140 petition was denied after the I-485 application was pending for 180 days and/or after a request for portability was received by the USCIS, an I-140 denial will invalidate the I-140 petition for portability purposes.
AC21: I-140 Portability
AMERICAN COMPETITIVENESS IN THE TWENTY-FIRST CENTURY ACT
On October 17, 2000, The American Competitiveness in the Twenty-First Century Act (AC21) was signed into law by President Clinton. Among other things, the new AC21 law provided greater job flexibility to foreign nationals experiencing long delayed adjustment of status by allowing for I-140 portability.
I-140 PORTABILITY APPROVED I-140 PETITIONS
AC21 106(c) allows for greater job flexibility for long delayed green card applicants. A foreign national may take advantage of AC21 portability and accept a new position with the same or a different employer if the following conditions are met:
- The foreign national’s I-485 application for adjustment of status (green card application) has been pending for 180 days or more; and
- The new job is in the same or a similar occupational classification as the job for which the original I-140 petition was approved.
- In instances where the foreign national no longer intends to be employed by the original I-140 petitioner, the foreign national’s new employer should file a Form I-485, Supplement J, with USCIS containing the new job title, job description and salary. The purpose of the form is to verify that the new job exists and to provide the information necessary to determine if the new job is in the same or a similar occupational classification.
UNAPPROVED I-140 PETITIONS
In certain situations, the I-140 petition and I-485 application to adjust status may have been filed concurrently and both remain pending for 180 days or more. Foreign nationals that attempt to move to a new position or employer with an unapproved I-140 petition are not automatically entitled to Section 106(c) portability under AC21. If a foreign national attempt to port to a new employer or position off of an unapproved I-140 petition, the USCIS must first review and approve the I-140 petition. Once the I-140 petition is approved, the USCIS will then examine the I-485 adjustment of status application to determine whether the new position is in the same or a similar occupational classification. Only if the I-140 petition is approved and the “same or similar occupational classification” requirement is satisfied will USCIS grant portability under Section 106(c).
Hire A Skilled Business Immigration Law Firm
Whether you’re a foreign professional or a U.S. employer looking to hire foreign workers, dealing with U.S. immigration law can be a daunting task. Our well-rounded and skilled attorneys at Sam Shihab & Associates will represent you and help you take the best legal paths, according to your particular situation. Our team can meet with you in a variety of locations and if you’re located far away from our local offices, you can always contact us by phone or email. The team at Sam Shihab & Associates is available to answer all your questions and discuss all the legal options at your disposal, regarding any immigration-related issues