Peter_102001
Registered Users (C)
I got this in Shusterman\'s monthly news letter, thought it will be usefull
for others.
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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.
for others.
***************************************************************************
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.