H-1B & Labor Certification Fundamentals
Section 106(c) of the American Competitiveness in the 21st Century Act (commonly referred to as the 180 Day Portability Rule) states:
A petition under subsection (a)(1)(D) [since re-designated section 204(a)(1)(F) of the Act] for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.
The American Competitiveness in the 21stCentury Act (AC21) allows for an extension of an immigrant’s H-1B visa status past the enforceable six year limit, should the procedure for acquiring permanent residency status within that time, have failed to occur. AC21 also allows for job elasticity for immigrants whose adjustment of status application has been pending for greater than 180 days.
The 180 Day Portability Rule refers, specifically, to a change in the immigrant’s employment while an adjustment of status application is pending. Essentially, the rule allows an immigrant to change his or her employment without compromising his or her application for immigration adjustment of status, provided that the new employment is in “…a similar occupational classification…” as the job under which the petition was filed AND the application for immigration adjustment status to permanent resident has been pending for 180 days or longer.
An immigrant who qualifies for application of the 180 Portability Rule will meet all the following requirements;
- Have an approved I-140 petition (Immigrant Petition for Alien Worker)An I-140 can be filed by one’s employer or (in certain cases) by the immigrant him or hers self. Prior to filing for an I-140 petition, the immigrant must have approved labor certification stating that the immigrant is qualified for the employment sought and that a suitable number of citizens are not available for the employment.* Please note that the I-140 must be APPROVED and not merely pending before any change of employment is attempted.
- Have an I-145 petition that has been pending for a minimum of 180 daysThe I-145 petition (Application for Adjustment of Status to Permanent Resident) is the final step in obtaining a green card. The period of 180 days should be considered as starting on the day that the petition arrived at the United States Citizenship and Immigration Service (USCIS)
- Obtain new employment that is within “…a similar occupational classification…”This is arguably the most intangible aspect of the 180 Day Portability Rule, as what is considered “similar” in regards to occupation may be a subjective notion, and substantial case law is yet to be developed to expound upon the term. However, an immigrant can be said to continue in a “similar” occupation so long as it corresponds to the Department of Labor’s job classification list, available on the labor certification application.