Starting a new job is exciting but also stressful. For a foreign national, it is even more stressful, because it can have significant consequences for their immigration status.
Under immigration law, portability is the ability to port or change employers while preserving your previously filed and pending I-485 adjustment of status application.
These changes prompt a number of critical questions. Here are answers to common concerns about job portability.
Does my candidate (potential employee) qualify for job portability?
In order to qualify, the employee must have an approved I-140 and an adjustment of status application pending for at least 180 days. The employee must be porting to a position that is considered the same or similar occupation as the position supporting the underlying I-140.
An employee could also port off an unapproved I-140 as long as the petition is ultimately approved. You do not need to establish the original employer’s continuing ability to pay after filing – just that they had the ability to pay at the time of the filing.
Can portability be denied?
Yes, you should be careful and seek legal guidance prior to taking advantage of this provision.
What is considered a “same or similar occupation”?
The rule defines “same or similar occupation” as “an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved.”
“Similar occupational classification” is defined as 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.”
The Standard Occupational Classification (SOC) code is one factor that may be considered. You can also provide other material evidence to show that the two positions have a marked resemblance or likeness.
What do I need to file to show evidence of the “same or similar” occupation?
USCIS developed a new seven-page form, Supplement J, that should be used to confirm existing or new job offers prior to adjudication of an application to adjust status. It will be used to confirm a bona fide job offer or request for job portability.
The form may also be accompanied by “material and credible documentary evidence, in accordance with form instructions.” There is no fee for filing Supplement J at this time. This form is not required for EB1-1 or NIW petitions where no job offer is required.
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