Important Issues after I-485
1. The Portability Provisions and Changing Employer after I-485 Application
Because an I-485 application is based on the intention of an alien to continue working for the employer after receiving U.S. permanent residence, even if the principal applicant receives an EAD, the alien applicant has traditionally been required to continue to work for the employer who filed the underlying I-140 petition. However, the American Competitiveness in the 21st Century Act (AC-21) altered this requirement.
AC-21 allows I-485 applicants to use an EAD to change employers, once their I-140 applications have been approved and the I-485 adjustment applications have been filed and remained unadjudicated for 180 days or more. The ability to change employers is referred to as portability. The portability provisions only permit adjustment applicants to work in a new position that is the same or similar to the position described in the approved I-140 petition of an alien applicant.
If an I-140 petition has been pending for at least 365 days, you can extend an H-1B visa status for one year at a time beyond the normal 6-year maximum. If the U.S. Department of State Visa Bulletin indicates that a country remains backlogged once the I-140 has been approved and you can not file I-485 application, you can extend an H-1B visa status for up to three years.
2. Job Change Considerations If U.S. Employer is the Form I-140 Sponsor
The U.S. employer does not control the Form I-485 application process, since Form I-485 is filed directly by alien employee to USCIS, not filed by U.S. employer. If the Form I-485 application is based on the approved Form I-140 petition in which the employer is a sponsor, the employer can always withdraw or revoke the I-140 petition if they want.
If the Form I-140 petition has been approved already, and the Form I-485 has been pending for 180 days, the employer can still revoke the approved Form I-140 petition. However, this does not prevent the pending Form I-485 case from being approved by USCIS. According to USCIS AC-21 rule, an approved Form I-140 petition remains valid once the Form I-485 application has been pending for more than 180 days, even if the employer requests the revocation of the Form I-140 petition.
The AC-21 rule's determination is governed by duties of the job rather than the job title, because the job titles often differ between companies, even for very similar positions. The AC-21 rule uses the terminology of "same or similar job classification." The alien employee's duties listed for the original job offer should be compared with the job duties of the new position to determine within which category he or she may fall. The job categories from Department Of Labor (DOL) are generally fairly broad. In many situations, this does not present a significant problem. It is important to know that the job duties are generally important, not the specific job title.
3. The "Same or Similar" Job Requirement and Job Portability Under AC-21
U.S. Citizenship and Immigration Services (USCIS) has issued the finalized policy memorandum on determining whether a new job is the same or similar in the context of a job change pursuant to the American Competitiveness in the Twenty First Century Act (AC-21). The memo provideed guidance for USCIS adjudicators reviewing applications for adjustment of status for Form I-485.
AC-21 allows an I-485 applicant to move to a position that is in the “same or similar occupational classification” as the one set forth in the underlying PERM labor certification once the I-485 has been pending for at least 180 days. The memo provides guidance to adjudicators on the meaning of “same or similar occupational classification” and how AC-21 cases are to be evaluated.
The key points in the AC-21 portability include:
* The standard of evidence is “preponderance of the evidence,” which is defined as “more likely than not” or “probably true.”
* Evidence considered includes the U.S. Department of Labor (DOL) standard occupational classification (SOC) codes.
* Other evidence can include: job duties, skills, experience, education, training, licenses, and any other material and credible evidence.
* AC-21 permits lateral moves, career progression, and/or self-employment.
4. The Job Promotion or Position Change, When Form I-485 Application Is Pending
USCIS adjudicator will evaluate the promotion situation on a case-by-case basis. The alien applicant's job duties for each position, the SOC codes for each position, and any differences in the salaries will be the determining factors, as to whether the alien applicant remains eligible for Form I-485 adjustment of status.
Whether the new position is considered a demotion, a simple move, or a promotion within the organization, the alien applicant's job duties must be sufficiently similar.
USCIS adjudicator will review the totality of the case, based on the regulation in INA section 204(j) and 106(c) of AC21, to evaluate the job mobility within the same or similar occupational classification, for qualifying alien applicant with the pending Form I-485 adjustment application.
5. Change to a Similar Job with Different SOC Code and Higher Wage
The job positions falling within identical SOC codes are generally considered as qualifying for AC21 portability. The same is true for positions within the same SOC broad occupational code, with first five digits match.
The career progression to positions in different SOC codes can be acceptable for AC21 portability also. The AC21 qualification includes job progression to the management of functions, or positions that are the same or similar to the original sponsored employment.
The AC21 same or similar requirement can also be met by positions in different SOC codes, even without career progression. If the evidence shows that the jobs share essential qualities or resemble each other, there is potential AC21 portability. This general recognition allows for variations in SOC codes that reflect different industries, but where the jobs are quite similar in duties, skills, requirements, and other factors.
Wage differences are not determinative. Wage differences are to be reviewed in light of geography, inflation, promotion, employer size, industry, and other relevant factors.
6. The Fingerprinting (or Biometrics Services) Requirement of the I-485 Status Adjustment Application
After I-485 application, the U.S. Citizenship and Immigration Services (USCIS) requires applicants of age from 14 to 79 to be fingerprinted for the purpose of conducting FBI criminal background checks. To better ensure both the quality and integrity of the process, the USCIS processes fingerprint cards for immigration benefits only if an authorized fingerprint site prepares them.
After receiving your I-485 adjustment application, the USCIS will mail you a notice scheduling you to appear for a fingerprinting at a USCIS designated location. The notice will specify a week for the applicant to appear. The fingerprints are a requirement for every applicant at age 14 through 79 years old to determine if they have a criminal history. The USCIS will submit the fingerprints to the Federal Bureau of Investigation (FBI) for a background check, which will be completed before an adjustment application is approved.
In addition to the filing fee for the I-1485 adjustment application, there is a fingerprinting fee (or biometrics services fee) charge for this procedure. The fingerprinting fee must be paid at the time of filing of the I-485 status adjustment application, before the completion of a fingerprinting.
Applicants residing outside the United States must be fingerprinted at a U.S. consular, and submit their fingerprints with their adjustment filing. These applicants will not be charged the USCIS fingerprinting fee. However, the consular may charge a fee for this service.
7. The Background Check for Form I-485 Adjustment of Status
To ensure that immigration benefits are given only to eligible applicants, USCIS adopted background security check procedures that address a wide range of possible risk factors. Different kinds of applications undergo different levels of scrutiny. USCIS normally uses the following three background check mechanisms but maintains the authority to conduct other background investigations as necessary:
1) The Interagency Border Inspection System (IBIS) Name Check— IBIS is a multi-agency effort with a central system that combines information from multiple agencies, databases and system interfaces to compile data relating to national security risks, public safety issues and other law enforcement concerns.
2) FBI Fingerprint Check - FBI fingerprint checks are conducted for many applications. The FBI fingerprint check provides information relating to criminal background within the United States. Generally, the FBI forwards responses to USCIS within 24-48 hours. If there is a record match, the FBI forwards an electronic copy of the criminal history (RAP sheet) to USCIS.
3) FBI Name Checks - FBI name checks are also required for many applications. The FBI name check is totally different from the FBI fingerprint check. The records maintained in the FBI name check process consist of administrative, applicant, criminal, personnel and other files compiled by law enforcement. Initial responses to this check generally take about two weeks. In about 80 percent of the cases, no match is found.
8. The Fingerprinting Process
A definitive response from the FBI regarding fingerprint clearances is required before the I-485 status adjustment application can be approved or transferred to the local office for interview. Applicants who do not appear at the fingerprinting within the time frame allowed will be denied as an abandonment of their I-485 application for failure to appear.
Previously, the fingerprinting notices would arrive at varying times during the case process. They were not tied to the case progress. In the event that the fingerprint report was too old by the time the case was ready for adjudication, the new prints would be required.
Authorized fingerprint sites include USCIS offices, Application Support Centers (ASCs), designated law enforcement agencies, and U.S. consular offices and military installations abroad. In general, USCIS schedules people to be fingerprinted at an authorized fingerprint site after an application or petition is filed.
9. The FBI Name Check Process
All applicants for a U.S. immigration benefit are subject to criminal and national security background checks to ensure they are eligible for that benefit. U.S. Citizenship and Immigration Services (USCIS), the Federal agency that oversees immigration benefits, performs checks on every applicant, regardless of ethnicity, national origin or religion.
FBI name checks are also required for many applications. The FBI name check is totally different from the FBI fingerprint check. The records maintained in the FBI name check process consist of administrative, applicant, criminal, personnel and other files compiled by law enforcement. Initial responses to this check generally take about two weeks.
In about 80 percent of the cases, no match is found. Of the remaining 20 percent, most are resolved within six months. Less than one percent of cases subject to an FBI name check remain pending longer than six months. Some of these cases involve complex, highly sensitive information and cannot be resolved quickly.
Even after FBI has provided an initial response to USCIS concerning a match, the name check is not complete until full information is obtained and eligibility issues arising from it are resolved.
10. The Request For Evidence (RFE) and Notice of Intent to Deny from USCIS
1) Request For Evidence (RFE)
An USCIS adjudicator may issue a Request For Evidence (RFE) on Form I-485 application cases that were clearly not approvable. The issuance of RFEs in these cases resulted in delays in the processing time. On the other hand, many cases could be approved if the applicants had been given the opportunity to provide additional information in response to the RFEs.
A Request for Evidence (RFE) from a USCIS Service Center is that the USCIS adjudicator is requesting additional evidence to address and support specific parts of the pending Form I-485 application. The petitioner may have certain days indicated in the RFE notice to respond the requests in the RFE notice. If the petitioner does not respond within the indicated time, the petition may be denied by USCIS. After USCIS receives the response to an RFE notice, further action will generally occur within 30 - 60 days, but may take longer for some cases.
A Form I-485 application case may be denied if it is clearly not approvable. These are cases where basic regulatory requirements are missing. This includes cases where an applicant is categorically ineligible to receive an immigration benefit. USCIS also recognized that sometimes the adjudicators request full range of information when only a small amount is needed to make a final decision, so it wastes examination resources through the review of unnecessary, duplicative, or irrelevant documents.
2) Notice of Intent to Deny
A Notice of Intent to Deny (NOID) is that the USCIS adjudicator is giving notice that USCIS will deny the pending case, unless you provide certain extra documentation. The petitioner may have certain days indicated in the NOID notice to respond. If the petitioner does not respond within the prescribed period, the petition may be denied. Once the USCIS receives your response to an NOID, further action will generally occur within 30 - 60 days, but may take longer.
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