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2012 Retrogression for EB-2 India Brings Opportunities for I-140 Portability

By Elizabeth Walder

In 2000, Congress passed the American Competitiveness in the 21st Century Act, often referred to as “AC21”. Its intent was to provide some job flexibility to foreign nationals whose applications for employment-based permanent residence were delayed more than 180 days. This enables certain individuals to change positions within their company or move to a different company anywhere in the U.S. without jeopardizing their Green Card application.

In October 2011, the July 15, 2007 cutoff date for Indian professionals awaiting visa numbers in the EB-2 category began a swift progression. By April 2012, it had moved almost 3 years to May 1, 2010. During the intervening period, tens of thousands of Indian professionals filed their I-485 adjustment of status applications based on approved employer petitions (I-140s).

In May 2012, the cutoff date for EB-2 India suddenly retrogressed back to August 15, 2007. A few months later, an additional retrogression moved the cutoff date back to September 1, 2004. As a result, a large number of Green Card applications were put into “holding” status. These applications will not be reviewed by USCIS until each applicant’s priority date has become current once again.

It is likely to be several years before most of the “on hold” I-485’s can be adjudicated. In the meantime, many employees are now exploring the possibility of “porting” their permanent residence applications to a new employer. However, there are significant limitations and risks that must be considered.

An employee with an approved I-140 may be eligible for AC21 portability once his I-485 has been pending for more than 180 days. The new position must be in the same or a very similar field as the position associated with the I-140. When deciding whether two positions are similar enough to enable portability, USCIS has two overriding concerns:

 Are the job duties of the new two positions substantially the same?
 Is there a substantial discrepancy between the wages offered for the two positions?

In both cases, it is the adjudicator’s prerogative to decide what “substantial” means. When comparing two jobs, it is USCIS’s will refer to the Standard Occupational Classification (SOC) codes into which they fall. If the codes seem discrepant on the surface, the portability application must explain how the actual duties of both positions are very similar.

An explanation may also be needed if the wages offered for the new position do not closely matched the wages for the certified position. Often, several years have elapsed since I-140 approval, and salaries typically increase with the passage of time. A change in geographical location, which AC21 allows, could also help to explain a difference in salaries.

AC21 also allows a sponsored employee with an I-485 pending more than 180 days to leave his employer to start his own business. Most typically, this occurs after a layoff. Three questions apply in this scenario:

 Are the self-employed job duties substantially the same as those of the certified position?
 Is the business legitimate?
 What were the true intentions of the employer and beneficiary at the time the I-140 and I-485 were filed?

Job duties in a self-employment scenario may be problematic if running the business adds too many duties that were not part of the original job description. Business legitimacy is generally measured by the concrete steps the beneficiary has taken to formalize his new endeavor. This might include obtaining a license, signing a lease, purchasing equipment, developing a business plan, and hiring employees.

The third consideration was designed to prevent abuse of the immigration process by a sponsor and applicant who never really intended to create a permanent employer/employee relationship. An I-140 is only valid for portability purposes if the employer’s job offer was bona fide and the foreign national really intended to work for the employer upon I-485 approval.

A USCIS adjudicator will normally treat the approved I-140 and supporting documents as strong evidence of appropriate intent by both parties. However, if there is any reasonable suspicion that the job offer was fictitious, the adjudicator may request additional evidence or undertake an investigation.

It is good practice to file an AC21 portability request as soon as a change in employment occurs. Given the long waits that some Indian nationals are facing for I-485 adjudication, it is quite possible that multiple portability requests will need to be filed. Fortunately, there is no prohibition against changing jobs more than once as long as all the AC21 requirements are met.

In our next article, we will provide real-world examples to highlight some of the complexities of AC21 portability.


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