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New Answers Regarding The Circumstances Under Which An Adjustment of Status Applicant in an Employment-Based Preference Category Can Utilize I-140 Portability

Posted on Monday, October 25, 2010

If you are an applicant for adjustment of status in an employment-based preference category and have been waiting years for a visa number to become available, you have probably heard of the concept “I-140 portability.” I-140 portability allows an applicant for adjustment of status in an employment-based preference category to “port” an immigrant visa petition to a new employer if (1) the job with the new employer is in the same or similar occupational classification, and (2) the adjustment of status application remains unadjudicated for 180 days or more. The purpose of I-140 portability was to give job flexibility to long delayed adjustment of status applicants.

For years it was unclear under which circumstances an adjustment of status applicant could utilize I-140 portability. Could an adjustment of status applicant “port” an immigrant petition that had not yet been approved? What about porting if the immigrant petition was denied more than 180 days after filing and the adjustment of status applicant had in the interim found a new job in the same or similar occupational classification?

On October 20, 2010, we finally got answers to these questions. On that date, USCIS announced that it issued a decision from the Administrative Appeals Office (“AAO”) regarding I-140 portability as binding precedent. In the decision, Matter of Al Wazzan, the AAO held that an adjustment of status applicant can only port an immigrant petition to a new job once the immigrant petition has been approved. Matter of Al Wazzan, 25 I&N Dec. 359 (AAO 2010). Thus, where an immigrant petition is still pending or has been denied, the adjustment of status applicant cannot take advantage of I-140 portability. This may sound logical, but it nevertheless took USCIS over 10 years to issue standards of application regarding this matter. In its October 20, 2010 announcement, USCIS stated that “[this decision] will provide guidance to USCIS adjudicators and help deliver predictability to the public.” Yes, it will. 

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