Complete Guide to Job Portability

USCIS implemented a new regulation in order to relax some of the job mobility restrictions for workers coming from other countries who are waiting for their permanent residence based on employment. According to the rule, grace periods will be given to nonimmigrant workers before and after their employment. But what exactly is this job portability rule and who is affected by it? Read this post to find out.

What Is the Job Portability Rule?

The job portability rule is featured in The American Competitiveness Act for the 21^st Century of 2000. In section 106(c), it is stated that if someone has submitted an I-485 adjustment of status application while having an approved I-140 visa petition under any of the Employment-Based preference categories, this person can change jobs and adjust status. Of course, there are some things to keep in mind too – it is only possible as long as the person’s new job is either in a similar occupation or the same one. Moreover, the status adjustment application should have been pending for more than 180 days.

The USCIS will require a letter from your new employer before the adjustment of status is being approved. Basically, the letter will help them check whether there’s a permanent employment offer or not. In the letter, the USCIS needs to find a description of your job, and how much the salary is going to be. Through this letter, they will be able to find out if you are about to have the same type of job or a similar occupation.

What the New Regulation Means for Employers and Foreign Nationals

The new regulation allows a nonimmigrant worker to get grace periods before and after the employment. Not to mention that if you are an adjustment applicant or another type of foreign national and you filed your employment authorization document on time, then you have access to automatic work authorization extensions. This new regulation from the USCIS was made in order to relax the job mobility restrictions a little bit, especially if you’ve been waiting for employment-based permanent residence.

Who Does Job Portability Affect?

Job portability concerns H1B nonimmigrants. If a nonimmigrant under this work visa category is employed under a valid LCA and with one employer too, then he/she has the authorization to take a new job. However, they can only do this as long as the new employer files a new petition on behalf of the H1B worker. This is necessary even when there was no adjudication of the new petition.

People who submitted form I-485 that is currently pending are the ones being affected by job portability. Basically, if you submitted this form based on your employment, it allows you to change the employer on which the Form I-140 is based.  

Portability and Priority Date Retention for I-140 Beneficiaries

If you are a foreign national who submitted an I-140 petition and had it approved for at least 180 days or over that amount of time, the revocation of your petition will not happen automatically. Even if the employer happens to withdraw the petition or it goes out of business, you will be safe from that. This is the effect on I-140 petition revocations of the new regulations. At the same time, you will need to find a new employer, or make a new I-140 in order to get your employment-based permanent residence.

However, if you petition for revocation and you’re an I-140 beneficiary, then you will have the opportunity to get a subsequent I-140 petition if you use the priority date. It’s only available if the revocation reasons were not related to something such as material misrepresentation, fraud, material error in the petition approval or revocation/invalidation of the underlying labor certification.

Not to mention that if you’re the beneficiary of a pending I-140 application, then you will also have the option to port your new employment. As long as your application for adjustment of status has been pending for at least 180 days or more, there shouldn’t be any problem. Also, it applies if when your petition was filed, it was approvable and stayed approvable for at least 180 days after the adjustment application was filed.

Employment Authorization & I-140 Beneficiaries

Are you an H1B, L1, E3, H1B1, or O2 nonimmigrant with an approved I-140 petition? If that’s the case, you’re allowed by the regulation to apply for a one-year employment authorization document, as long as there is a backlogged priority date. It is also allowed if you have the ability to show proof of compelling circumstances in order to justify why you need employment authorization in the first place. Some evidence that you can show could be that of a significant disruption to your employer or a medical emergency.

Grace Periods for Nonimmigrant Workers

When the employment gets terminated too early for H1B, H1B1, O1, E, L1, or TN nonimmigrants, there will be a grace period of up to 60 days that will be accorded during every validity period. With this grace period, you will be allowed to either change, extend, or maintain your status. Additionally, it will allow you to make preparations to leave the United States.

If you’re an approved L1, E, or TN nonimmigrant, then before and after your period of validity, you will be granted a 10-day grace period. The same is available for nonimmigrants under a P, O, and H1B visa. So, 10 days before the start date to get ready for the job, they will be allowed to enter the United States. That being said, you will be allowed 10 days when the period ends, so you can try to change, maintain, or extend your status if needed, or get ready to depart the States.

Keep in mind – you are not authorized to work during your grace periods. The only exception is for H1B foreign nationals who are now porting to a new job.

H1B Extensions After Six Years

There are some additional requirements for the codification of the USCIS policies on H1B extensions after six years of the new regulation.

• H1B nonimmigrants will not be eligible for a one-year post-sixth year extension as long as they don’t succeed in applying for adjustment of status within one year of when the immigrant visa becomes available. The same applies if they fail to apply for an immigrant visa within that period.
• If an H1B nonimmigrant withdraws his/her I-140 petition 180 or more days after the approval date, he/she will still be eligible for a three-year extension. It’s only possible as long as the withdrawal was not due to material misrepresentation, fraud, revocation/invalidation of the underlying labor certification, or a material USCIS error.
• Foreign nationals who don’t have an H1B visa at the moment will have post-sixth year extensions available for them. Also, it’s available only if they had an H1B status in the past and are still eligible to get an additional H1B admission period.
• An H1B extension of the one-year post-sixth year will not be available anymore if the foreign national’s labor ceases to be valid when the extension is filed. The same happens if the I-140 was revoked or denied, or if the immigrant visa/adjustment application has been denied or approved.

Conclusion

It’s important to know about the new job portability rule if you’re a nonimmigrant worker. Hopefully, this article helped clarify many things for you.

Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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