USCIS Guidance on I-140 Petitions and Ability to Pay after AC21 Portability

In the landscape of U.S. immigration, few topics are as pivotal for employment-based green card applicants as the American Competitiveness in the Twenty-First Century Act (AC21). As of January 5, 2024, the United States Citizenship and Immigration Services (USCIS) has issued updated guidance that significantly impacts individuals taking advantage of AC21 portability. Here’s what you must know about the latest USCIS ability to pay guidance, especially when it comes to the adjudication of Form I-140 petitions after a job change.

Understanding the Employer’s Requirement to Establish Ability to Pay

When it comes to the employment-based permanent residence process, the employer has a crucial role. Specifically, during the filing of the I-140 petition, which serves as the second phase of the three-step process, the employer must prove financial stability enough to pay the foreign national worker the prevailing wage listed on the PERM labor certification. USCIS determines this by requiring evidence that the employer can pay the wage as of the PERM’s priority date, a concept well-outlined in the informative piece, “Requirement to Prove Ability to Pay in an I-140 Petition” dated August 31, 2020, from MurthyDotCom.

Eligibility for AC21 Portability Explained

AC21 portability is a boon for individuals with a pending I-485, or application for adjustment of status, allowing them to move to a new job within the same or similar occupational classification without jeopardizing their application, provided certain criteria are met.

To be eligible, the I-485 must have been pending for no less than 180 days. Moreover, the applicant should have an approved I-140 or a pending I-140 that was deemed approvable when filed.

USCIS’s Refreshed Stance on I-140 Petition Adjudication After AC21 Portability

In cases where an employee opts to switch jobs using AC21 portability and the I-140 is pending, the employer who filed the I-140 is generally expected to continue to demonstrate the ability to pay the offered wage until approval. The latest USCIS guidance brings a much-anticipated clarification: the USCIS will evaluate the I-140 on the basis of the employer’s financial capability as initially provided and considering the circumstances present at filing.

“While USCIS may still request additional information if the initial submission was lacking, it’s not typically going to demand proof that the employer maintained the ability to pay after the initial filing,” the guidance suggests. This principle means that the scrutiny does not extend to the period after the I-140 application submission, provided the initial evidences were complete and satisfactory.

Conclusion: Navigating the Green Card Process with Peace of Mind

The new USCIS guidance on I-140 petition adjudication after job change under AC21 is a significant development for foreign national workers in the United States. This pivotal change brings peace of mind to employees seeking new opportunities during the lengthy green card process. Nevertheless, it’s essential to remember that even with this clarification in place, consulting a qualified U.S. immigration attorney is imperative.

When new employment opportunities surface, being well-informed and advised is key to ensuring that one’s green card application remains uncompromised. The adjudication process demands a keen understanding of AC21 portability, and ensuring that all steps are correctly navigated is crucial. The latest updates from USCIS demonstrate a commitment to clarity and fairness for both employers and immigrant workers amidst the complexities of U.S. immigration policy.

For more detailed information on AC21 and the recent USCIS updates, always refer to the official USCIS website and consider legal counsel for personal cases. With informed steps and the right guidance, maintaining one’s path to permanent residency in the U.S. while advancing professionally is wholly achievable.

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Glossary of Immigration Terminology:

1. American Competitiveness in the Twenty-First Century Act (AC21) – A U.S. immigration law that provides certain benefits and flexibility to employment-based visa holders, including provisions related to job portability and the ability to change employers during the green card process.

2. AC21 Portability – Refers to the ability of individuals with a pending adjustment of status (Form I-485) application to change jobs within the same or similar occupation without jeopardizing their green card application, provided specific eligibility criteria are met.

3. USCIS (United States Citizenship and Immigration Services) – The government agency responsible for administering and handling immigration services, including processing immigration applications and petitions.

4. Employer’s Ability to Pay – The requirement for an employer to demonstrate financial stability and the ability to pay the prevailing wage listed on the PERM labor certification when filing the Form I-140 petition, which is the second phase of the employment-based green card process.

5. Form I-140 – The immigration form used by employers to petition for an immigrant worker to obtain an employment-based visa in certain preference categories.

6. Priority Date – The date when the labor certification application (PERM) is filed on behalf of the foreign national worker, which establishes their place in line for receiving an employment-based visa.

7. I-485 – The immigration form used by individuals to apply for adjustment of status, which allows them to become a lawful permanent resident (obtain a green card) while in the United States.

8. Approved I-140 – Refers to an I-140 petition that has been reviewed and approved by USCIS, indicating that the employer’s petition for the foreign national worker to obtain an employment-based visa has been accepted.

9. Pending I-140 – An I-140 petition that has been filed with USCIS but has not yet received a decision.

10. USCIS Guidance – Refers to official instructions and policies issued by USCIS to provide clarification and interpretation of immigration laws, regulations, and procedures.

11. Consultation U.S. immigration attorney – Refers to seeking advice and assistance from a qualified attorney who specializes in U.S. immigration law to ensure proper understanding and compliance with immigration regulations during the green card process.

12. Adjudication – The process of reviewing, evaluating, and making a decision on an immigration application or petition by USCIS.

13. Green Card – The common term for a lawful permanent resident card, which grants an individual the status of a permanent resident in the United States.

14. Permanent Residency – The status of being a lawful permanent resident in the United States, allowing an individual to live and work in the U.S. indefinitely.

15. Immigration Attorney – A legal professional specializing in U.S. immigration law who provides advice, representation, and assistance to individuals or organizations seeking immigration benefits or facing immigration-related issues.

And there you have it! Navigating the intricacies of AC21 portability doesn’t have to be a daunting task. With the updated USCIS guidance on I-140 petition adjudication after job change, foreign national workers can now pursue new opportunities with peace of mind. Remember, staying informed is crucial, and when it comes to your immigration journey, consider consulting a qualified U.S. immigration attorney. For more expert insights and resources, be sure to visit visaverge.com. Happy exploring!

This Article in a Nutshell:

USCIS has issued new guidance on AC21 portability. Employers must prove financial stability to pay prevailing wage. AC21 portability allows job changes without jeopardizing green card applications. I-485 must be pending for 180 days and have an approved or pending I-140. USCIS will evaluate I-140 based on initial evidence. Seek legal counsel for personal cases.