The 180-day portability rule provides that if a person has submitted an application for I-485 adjustment of status and has an I-140 visa petition approved under one of the Employment-Based preference categories, he can change jobs and still adjust his status as long as the new job is in the same or a similar occupation and his application for adjustment of status has been pending over 180 days.
Before approving the application for adjustment of status, the USCIS will request a letter from the new employer to verify that an offer of permanent employment exists. The letter must contain a description of the job as well as the salary. The USCIS will use this letter to determine whether the job meets the same or similar occupation requirement.
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180-Day Portability Rule Requirements
To qualify for adjustment of status under 180-day portability rule, an applicant must meet the following eligibility requirements:
- The applicant is the beneficiary of an approved Form I-140 petition or of a pending petition that is ultimately approved;
- The petition is filed in the employment-based 1st, 2nd, or 3rd preference category;
- The applicant’s properly filed adjustment application has been pending with USCIS for 180 days or more at the time USCIS receives the request to port;
- The new job offer through which the applicant seeks to adjust status is in the same or similar occupational classification as the job specified in the petition; and
- The applicant submitted a request to port. If the applicant makes a request to port on or after January 17, 2017, the applicant must submit a Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) (Form I-485 Supplement J). If the applicant requested to port before January 17, 2017, the applicant could have requested to port through a letter, since Form I-485 Supplement J did not go into effect until January 17, 2017.
The new job offer may be with the same petitioner or with an entirely new employer, including self-employment. Applicants can submit the 180-day portability request and evidence with the adjustment application or in any in-person interviews or in response to a request or other notice from USCIS.
Withdrawal of Petition
In general, if USCIS receives a request from a petitioner to withdraw a pending Form I-140 petition, USCIS issues an acknowledgment of the withdrawal request and denies any corresponding adjustment application. However, if the pending petition is approvable and the adjustment application was pending for 180 days or more, the petition may remain valid for priority date retention and possible eligibility under the 180-day portability rule for the adjustment application.
In addition, if USCIS receives a request from a petitioner to withdraw a petition that has been approved for fewer than 180 days, and any corresponding adjustment application has not been pending for at least 180 days (or has not been filed), USCIS automatically revokes the approval of the petition.
However, if USCIS receives a withdrawal request from a petitioner 180 days or more after the approval of the petition, or a corresponding adjustment application has been pending for 180 days or more, the petition remains valid for priority date retention.
You may be eligible under the 180-day portability rule for adjustment application (unless USCIS revokes the approval of the petition under substantive grounds) if he or she satisfies all of the requirements to port based on a new same or similar position and the adjustment application has been pending 180 days or more at the time of withdrawal.
If you are not eligible to adjust your status under the 180-day portability rule, you must obtain a new employment-based preference petition in order to file a new adjustment application, even if withdrawal of the original petition occurred after it had been approved for at least 180 days or a corresponding adjustment application was pending for at least 180 days.
General Information – 180-Day Portability Rule
- Job Portability After Adjustment Filing (USCIS)
- I-140 Portability for Employment-Based Adjustment Applicants in Removal Proceedings: Strategies for Challenging Matter of Perez-Vargas (Updated 1-09-08)
- BIA Holds That Immigration Judges Have No Jurisdiction Over 180-Day Portability Issues – Perez Vargas (10-28-05)
- Interim Guidance for Processing Form I-140 EB Immigrant Petitions And Form I-485 and H-1B Petitions under AC-21 (5-12-05)
- INS Memo: Initial Guidance on AC-21 – Includes Section on 180-Day Portability Rule (6-19-01)
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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