AC 21: Changing the employer of your employment-based green card application

DEAR Attorney Tan,

I have an approved I-140 immigrant petition which was filed by Company A on my behalf.   Company A would like to employ me as a bookkeeper.  Based on that approved I-140 petition, I filed an application for green card (I-485 adjustment of status) in August 2014.  Since that time, my green card application has been pending, as USCIS has requested additional documents in support of my application.  Recently, another company, Company B, has expressed interest in hiring me for a payroll clerk position.  Company B is a more established company based in the Midwest and pays $10,000.00 less but offers much better benefits.  Is there a way I can substitute Company B as the employer in my green card application?  –P.T.

Dear P.T.

Under INA Section 204(j), commonly referred to as AC 21, an approved I-140 employment-based immigrant petition filed by one employer can be used by or “ported” to another employer providing certain requirements are met.  First, a green card (I-485 adjustment of status) application must have been filed and must be pending for at least 180 days.  Second, the “new” job offered by the second employer must be in the same or similar occupational classification as the job for which the first employer filed the I-140 petition.

In your situation, you meet the first requirement in that your application for green card (I-485) was filed in August 2014.  Your application has been pending for over 1 year, which is more than the required 180 days under AC 21.

In depth analysis in your case is needed as to whether Company B’s job of “payroll clerk” is considered a “similar occupational classification” to Company A’s job of “bookkeeper,” for which Company A petitioned you.  In determining whether one job is similar enough to another job for AC 21 purposes, the USCIS takes into account the totality of the circumstances, including the job duties of both positions, the Standard Occupational Code (SOC) from the approved I-140 and the SOC code for the job offered by the new prospective employer, as well as the offered wages for each position.

In your case, analysis would begin with the job duties of each position.  The more similarity in job duties between bookkeeper and payroll clerk, the greater the likelihood that USCIS would consider them similar.  Also, the SOC code for the 2 jobs would be taken into account.  In addition, the wages offered by each employer would be considered.   The existence of a big disparity in wages offered by each employer is not by itself a reason to conclude that the jobs are not similar.  In your case, the fact that Company B is offering $10,000 less than Company A has to take into account the fact that the Midwest has a lower cost of living, as well as the fact that better benefits are being offered by Company B.

If it is considered a “similar occupational classification,” Company B may be substituted in as the employer in your pending green card application, and Company B will not have to start the process from the beginning by filing a labor certification application and by obtaining an approved I-140 petition.    

The analysis of whether you can use or “port” your approved I-140 requires additional analysis, and consulting with an experienced attorney is recommended.

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Darrick V. Tan, Esq. is admitted to practice law in California and Nevada.  Mr. Tan is a graduate of UCLA and Southwestern University School of Law.  He is a member of the Consumers Attorney Association of Los Angeles and is a former member of the Board of Governors of the Philipp ine American Bar Association.

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