7. 180 Day Portability Rule: Clearing Up Common Misconceptions
In November, I spoke at an immigration law seminar given by the Practising
Law Institute in San Francisco. My topic was the "180 Day Portability"
rule, also known as §106(c) of the American Competitiveness in the 21st
Century Act (AC-21).
Although the rule is only two sentences long and is stated in simple
English, employers and employees alike remain confused as to its meaning.
The law states that both labor certifications and employment-based visa
petitions remain valid with respect to a "new job" where the INS fails to
adjudicate an application for adjustment of status within 180 days "if the
new job is in the same or a similar occupation as the job for which the
"petition was approved" or the "(labor) certification was issued".
This seems simple, doesn\'t it? Of course, since there are currently no INS
regulations interpreting the statute, reasonable minds may disagree about
what the phrase "same or similar occupation" means. What if a software
engineer becomes a senior software engineer? Not much of a stretch.
However, if she becomes the VP for Software Operations, her attorney may
have to do battle with the government to get her adjustment application
approved.
A lot of people get confused when there is a change of
* salary
* location
However, since neither are limiting factors under §106(c), both the salary
and the location of the applicant\'s new job should be irrelevant.
Others are confused about whether the rule applies where the applicant
changes jobs before the 180-day period has elapsed. Again, the operation
of the new rule is not affected by such changes. If an applicant for
adjustment of status changes jobs 60 days into the 180-day period, she is
home free as long as the INS takes over 180 days to decide the application.
The statute provides that the job offer is prospective only. However, case
law imposes an "intent" requirement: An applicant must, at the time that an
application for adjustment of status is submitted, have the intent to work
for the petitioning employer indefinitely. If the applicant quits to work
at a higher-paying job two days after the adjustment application is filed,
the INS may seek to deny the application arguing that the applicant lacked
the requisite intent at the time that the application was submitted.
However, some people think that the rule requires the applicant to work for
the petitioning employer for 180 days after the I-485 is submitted. It
clearly does not.
INS\'s Policy Memorandum regarding AC-21, dated June 19, 2001, provides, on
page eight, that "adjudicators shall not deny applications for adjustment
of status on the basis that the alien has changed jobs. Under present
practices, it is expected that an I-485 applicant notify the Service when
they no longer intend to enter into employment with the employer who
sponsored them on the I-140 petition. The Service should continue to
expect the applicant to submit a letter to the INS of this change of
intent... The Service should request a letter of employment from the new
employer..."
In practice, an applicant who changes jobs after the I-485 has been
submitted should send both letters to the INS by certified mail.
In November, I spoke at an immigration law seminar given by the Practising
Law Institute in San Francisco. My topic was the "180 Day Portability"
rule, also known as §106(c) of the American Competitiveness in the 21st
Century Act (AC-21).
Although the rule is only two sentences long and is stated in simple
English, employers and employees alike remain confused as to its meaning.
The law states that both labor certifications and employment-based visa
petitions remain valid with respect to a "new job" where the INS fails to
adjudicate an application for adjustment of status within 180 days "if the
new job is in the same or a similar occupation as the job for which the
"petition was approved" or the "(labor) certification was issued".
This seems simple, doesn\'t it? Of course, since there are currently no INS
regulations interpreting the statute, reasonable minds may disagree about
what the phrase "same or similar occupation" means. What if a software
engineer becomes a senior software engineer? Not much of a stretch.
However, if she becomes the VP for Software Operations, her attorney may
have to do battle with the government to get her adjustment application
approved.
A lot of people get confused when there is a change of
* salary
* location
However, since neither are limiting factors under §106(c), both the salary
and the location of the applicant\'s new job should be irrelevant.
Others are confused about whether the rule applies where the applicant
changes jobs before the 180-day period has elapsed. Again, the operation
of the new rule is not affected by such changes. If an applicant for
adjustment of status changes jobs 60 days into the 180-day period, she is
home free as long as the INS takes over 180 days to decide the application.
The statute provides that the job offer is prospective only. However, case
law imposes an "intent" requirement: An applicant must, at the time that an
application for adjustment of status is submitted, have the intent to work
for the petitioning employer indefinitely. If the applicant quits to work
at a higher-paying job two days after the adjustment application is filed,
the INS may seek to deny the application arguing that the applicant lacked
the requisite intent at the time that the application was submitted.
However, some people think that the rule requires the applicant to work for
the petitioning employer for 180 days after the I-485 is submitted. It
clearly does not.
INS\'s Policy Memorandum regarding AC-21, dated June 19, 2001, provides, on
page eight, that "adjudicators shall not deny applications for adjustment
of status on the basis that the alien has changed jobs. Under present
practices, it is expected that an I-485 applicant notify the Service when
they no longer intend to enter into employment with the employer who
sponsored them on the I-140 petition. The Service should continue to
expect the applicant to submit a letter to the INS of this change of
intent... The Service should request a letter of employment from the new
employer..."
In practice, an applicant who changes jobs after the I-485 has been
submitted should send both letters to the INS by certified mail.