Portability: Can You Change Jobs Without Jeopardizing Your Immigration Status?
By James A. Bach
"AC21" was a law passed
by Congress in 2000 to avoid immigration penalties that would otherwise be
caused by delays in USCIS processing of applications for H-1B and green card
status based on employment.
Essentially, AC21 allows an employee to change jobs without
giving up H-1B status, an approved labor certification, a pending I-140
(immigrant visa petition based on employment) or a pending I-485 (application
for adjustment of status).
Regulations have never been published by
the INS or USCIS to fill in the gaps and ambiguities in
AC21. Instead, the agency has issued several policy memos
that explain who is eligible to "port". The discussion below
is based in large part on those memos, which do not have the
force law and which can be changed at any time by the USCIS,
Congress or the courts.
"Portability" in the context of AC21
refers to the ability to change employers without
invalidating: 1) H-1B status, 2) an approved labor
certification, or 3) an approved I-140. A green card (i.e.,
I-140/I-485) applicant may have invested many years seeking
the labor certification and waiting for the USCIS to process
the green card applications. Portability can enable the move
to another job without requiring the applicant to start all
over again from the beginning.
Normally, the employee will lose all of
the benefits of the labor certification if he or she loses
the underlying job (i.e., quits or is fired) before 1) the
labor certification is approved, or 2) within the first 180
days after filing the I-485.
On the other hand, the approved labor
certification is almost always portable after the 180th
day after filing the I-485. In that case, the employee can
continue to use the labor certification and/or the approved
I-140 to become a permanent resident as long as the new job
is in the "same or similar occupation." That is true even
|The I-140 is not yet approved.|
|The I-140 is withdrawn by the
employer (after 180 days).|
|The new job is in a different
|The new job is self-employment.
|The employer goes out of
business (after 180 days).|
|The employee stops working
before 180 days, or never worked for the employer!
(However, the applicant must still prove that the job
offer was in good faith, that it existed until the 180th
day, and that at the time the I-140 was filed both
the employer and employee intended that the described
employment would take place at some time in the future).|
|The new salary is different
(however, a huge salary discrepancy may lead the USCIS to
conclude that the new employment is not in the same or
|The new employer cannot
demonstrate the ability to pay the salary. (In contrast,
the original employer must demonstrate the ability to pay
the salary from the time the labor certification was filed
until the approval of the I-485).|
In most cases an employee can change jobs
180 days after filing the I-485, without having to get a new
labor certification or file a new I-140. However, before
changing companies, employees should get the advice of an
attorney who is familiar with the old job, new job, and
current status of the I-140/I-485, and there should be a
comprehensive analysis and strategy in place before leaving
the initial job.
AC21 also provides for changing employers
and retaining H-1B status as soon as the H-1B
petition for the new company is received by the USCIS. This
H-1B portability applies even after the initial H-1B
status expires, if the new H-1B petition is filed before
For example, an employee who works for
Company A, with H-1B status valid to June 1, 2009, may get a
job offer from Company B in May 2009. If Company B files an
H-1B petition by overnight courier on May 18, 2009, the
employee can begin working on May 19, 2009. If the employee
then decides to work for Company C on June 15, she can do
so, even though it is past the June 1 expiration date and
even though the Company B petition is not yet approved
(as long as Company C submits an H-1B petition by June 15).
This would be a good case for Premium Processing (i.e.,
paying the USCIS an additional $1000 for expedited
processing), because if Company B withdraws its H-1B
petition before the Company C petition is approved, the
"bridge" would be broken, and the H-1B status would no
longer be portable.
Premium Processing is also appropriate
when changing employers if there is a question as to whether
the H-1B petition with the new company will be approved. For
example, there may be an issue as to whether the new job is
a professional position that will support H-1B status.
Portability applies only if the new H-1B petition is
approved. If it is denied, the denial is retroactive to the
date of filing. Although the portability laws provide that
the employment with the new company is lawful until the date
of denial, once it is denied the employment is no longer
authorized and the employee is out of status. If there is a
possibility of denial, it might therefore be advisable to
wait until the new H-1B petition is approved, rather than
rely on the portability provisions. In my experience though,
most H-1B transfers are ultimately approved, and it is a
rare case in which the H-1B portability provisions of AC21
should not be used.
Extension of H-1B Status Beyond 6 Years
There are two bases for extending H-1B
status beyond the normal limit of 6 years. First, it
can be extended if a labor certification or I-140 is filed
by the end of the 5th year in H-1B status.
Second, it can be extended if the employee cannot file
for or complete adjustment of status because the immigration
quota is not yet current.
In order to extend H-1B status beyond six
years, the H-1B petitioner does not have to be the employer
that filed the labor certification. The employee is entitled
to continue to extend the H-1B status until:
a) The labor
certification is denied or withdrawn;
b) The I-140 is denied or
d) The I-485 is denied or approved.
An H-1B employee who is working for
Company A (which filed a labor certification before the end
of the 5th year), can transfer to Company B, and
continue to extend H-1B status beyond the 6th
year, as long as the labor certification (filed by Company
A) is still pending. Of course, that would require Company
Aís cooperation not to withdraw the labor certification, and
perhaps even to pursue the labor certification to
An I-140 remains pending until the
conclusion of an administrative appeal. By way of example,
assume that the basis for extending the H-1B status is an
Outstanding Researcher or National Interest Waiver petition
(I-140) filed before the end of the 5th year in
H-1B status. If the I-140 is denied, the petitioner has 30
days to appeal the decision to the Administrative Appeals
Office (AAO). The AAO often takes over a year to process
such appeals. The employee could extend his or her H-1B
status beyond six years at any time before a final decision
is made on the appeal.
In some cases, an employee may be able to
resume H-1B status beyond the six-year limit even though he
or she is no longer in H-1B status or out of the country.
H-1B extensions based on the
unavailability of the per-country quota would normally be
requested for a period of three years. Although AC21 itself
refers to "one-time protection," the USCIS will grant
additional extensions if three years is not enough time for
the quota to become current. In order to extend H-1B status
based on the per-country quota, the I-140 (not just
the labor certification) must be approved.
*The information contained in this article should not be
used as a basis for taking action or for failing to act.
Instead, it is intended to educate the firmís clients and
members of the public generally, and to provide a background
for directing case strategy in collaboration with a
competent and experienced immigration attorney. No attorney
/ client relationship is created by the information
provided, and even the firmís existing clients should not
take any action unless they are instructed to do so by an
attorney. Information on this site may be outdated or
erroneous, and you should seek the advice of an attorney to
determine current law or policy.
representation call (415) 248-3100 or send an email to
Mr. Bach is
Certified as a Specialist in Immigration and Nationality Law
by the California State Bar Board of Legal Specialization,
and is a Commissioner of the California State Bar
Immigration and Nationality Advisory Commission.
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