Adjustment Portability

Foreign nationals who are awaiting completion of their green card applications through Adjustment of Status (AOS), may be eligible for adjustment portability. This law, enacted in 2000, increases employment flexibility for those who qualify. Foreign nationals who have an employment-based Adjustment of Status (green card) application pending with the US Citizenship and Immigration Service (USCIS) may change to a similar position with a different employer.

Background

As a general rule, all employment based green card applications are employer, employee, job duty and job location specific. If any one of these factors has a material change, prior to green card issuance, the application is lost. This can result in significant processing delays. Adjustment portability provides for a limited exception to this general rule.

Currently, there are no regulations implementing this new law. USCIS has issued non-binding memorandum, but these can change without prior notice. Accordingly, it is our opinion that adjustment portability should be used cautiously, and only with the assistance of counsel.

Requirements

The adjustment portability provision requires that the foreign national continue to work in the same or similar field, doing the same or very similar job, even if the company and job location have changed. We require certain documents before an effective evaluation of the risks can be determined in any case. These documents include:

The individual's Adjustment of Status application must have been pending for at least 6 months, and it is preferred if the underlying I-140 Immigrant Worker Petition has been approved. Our office needs to review the following information before utilizing this provision:

· Description of the proposed new company position, salary, and work location address.

· Copies of all prior petitions including: the Labor Certification, copy of I-140 Petition and approval, copy of I-485 Adjustment Petition and receipt, Employment Authorization Card. A copy of all prior temporary visa paperwork, including I-94 cards and Visas, are also useful.

Foreign nationals must remember to maintain valid Advance Parole documents, in order to allow for continued international travel while the adjustment is pending. Any temporary work status (H-1B, L-1, etc.) will become invalid once a change of employers begins.

Note: The new employer and the foreign national should remember that if the rules for adjustment portability change, or if the individual's Adjustment is denied, the employee may not be allowed to continue working. This assessment involves a determination of a number of different factors. In September 2006 a revised version of the 2005 memorandum from USCIS was released on how this law is being implemented.