Under the American Competitiveness in the Twenty-first Century Act of 2000 (AC-21) law passed by Congress, in some circumstances, foreign nationals whose I-485 Adjustment of Status applications have been pending for at least 180 days may change employers and work for another employer in the “same or similar occupation” without abandoning their adjustment of status application.* Previously, the law required foreign nationals to continue to work for the employer who petitioned their “permanent resident status” until that petition was approved or until the foreign national obtained an immigrant visa at a consular post abroad.

Currently, USCIS is limiting portability to cases where the underlying I-140 petition filed by the original sponsoring employer was approved prior to the applicant “porting” to another company. For example: Company A files an I-140 petition for Employee and concurrently files an I-485 application. Employee “ports” to Company B after the I-485 application has been pending 180 days but not before I-140 filed by Company A is approved. USCIS will take the position that Employee was not eligible to port and will likely deny the I-485 application.

“Same or similar occupation” is also currently undefined by USCIS. If USCIS determines a job is not “same or similar,” the I-485 application may be denied.

* Note that AC21 does not provide for green card portability for consular processing applicants — only adjustment of status applicants are protected. Thus, foreign nationals applying for their green card through consular processing whose applications have been pending for more than 180 days are not eligible for portability.

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