You were working for a company A as a Software Engineer and Company A filed an Eb-2 green card petition for you. The I-140 petition has been approved, and your Adjustment of Status petition has been pending with USCIS for 10 months. You now want to start working for Company B as a Software Engineer and you are wondering whether you can change jobs without the change affecting your pending green card petition.
Who can benefit from the job portability under section INA 204(j)?
You have to meet the following requirements to benefit from the I-140 portability:
- You have to have an approved I-140 immigrant petition that was filed under the Eb-1, Eb-2, or Eb-3 green card category,
- You already filed an Adjustment of Status petition that has been pending with USCIS for at least 180 days,
- The new job offer you receive is in the same or similar occupation that the previous petition (USCIS will look at things like job title, job duties, required skills, education and experience, wage in the previous and proposed position), and
- You and the new employer submitted a Request to port (Supplement J).
Please note that you have to meet all of the above requirements to be able to take advantage of the 204(j) porting. You and your new employer will each have to fill out portion of the Supplement J with USCIS and USCIS will then make a decision on Supplement J and on the entire Adjustment of Status petition.
In the example above, the foreign national seems to meet all the criteria and could benefit from the 204(j) portability.
What if the original petitioner withdraws the I-140?
If the employer who originally submitted the I-140 petition wants to withdraw the petition, he/she can do so, however if the I-140 petition has already been approved for at least 180 days (or the green card petition has been pending for at least 180 days), USCIS will not revoke the I-140. Instead, USCIS will consider the job withdrawn, but you will be able to retain the priority date and still port the I-140 to the new job.
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