In a June 2008 Client Alert, we explained that under the provisions of the American Competitiveness in the Twenty-First Century Act, an applicant for adjustment of status, who is the beneficiary of an I-140 immigrant, and whose adjustment application has been pending for more than 180 days, is permitted to change to a new job or employer, as long as the new position is in the same or similar occupation as the original job. Unclear under the terms of the statute was whether the “porting” employee had to be the beneficiary of an approved I-140 petition. In earlier guidance issued a few years ago, the USCIS stated that an approved petition was not necessarily required before the foreign national could “port.” Then, in guidance issued in May 2008, the agency seemed to have taken a new position, requiring an approved I-140 petition before a person can switch jobs or employers.

In a later clarification of its May guidance, the USCIS has stated that an approved I-140 immigrant visa petition is not necessarily required for a person to port to a new position. However, a petition that is “deniable,” meaning, one that is “not approvable,” will not support a switch to a new job or employer. What does this mean? Suppose a company filed its I-140 immigrant visa petition on June 1, 2008, at the same time that its foreign national employee filed his I-485 application for adjustment of status. Eight months later, the employee moved to a new employer, working in a job similar to the one he had just left. If, after another two months, the first employer’s I-140 petition is approved, then the adjustment of status application can be approved. But, if the I-140 is denied, the foreign national’s adjustment of status application will also be denied.

Because of the uncertainty involved in these cases, it is more prudent for a foreign national not to move to a new employment situation until the underlying I-140 immigrant visa petition has been approved.