USCIS Ombudsman has received inquiries stating that the agency is not issuing Notices of Intent to Deny following a change of jobs, as required by the American Competitiveness in the 21st Century Act (AC21) and USCIS policy guidance, but instead is immediately denying pending Form I-485 (Application to Register Permanent Residence or Adjust Status) applications.
If a foreign national is: (1) the beneficiary of an approved Form I-140 (Petition for Immigrant Worker); and (2) has a Form I-485 pending for 180 days or more, he or she is eligible to change to a same or similar position. If the underlying approved I-140 is withdrawn, and no evidence of a new qualifying offer of employment was submitted, then USCIS must issue a Notice of Intent to Deny the pending I-485.
However, the ombudsman noted that USCIS may deny the I-485 in cases of portability (the ability to change jobs) before first issuing a Notice of Intent to Deny in certain limited circumstances. These include, for instance, where the beneficiary is ineligible for the benefits of the I-485 by statute, e.g., where the individual changes to a job bearing no similarity to the prior employer’s offered post, or the I-140 immigrant visa petition is withdrawn before the adjustment of status application had been pending for at least 180 days.
For more information, including links to USCIS Interoffice Memoranda further clarifying USCIS processing of these cases, click here.