After all of the work, fees, and filing that was done to get an I-140 approved for the second preference level, you still need to wait for the priority date to be current. For some people, the EB-2 green card waiting time could be several years. Because the EB-1 waiting times are often much shorter, one thing that many of these prospective green card holders consider is EB-2 to EB-1 porting. But porting is not as simple as it sounds, it essentially involves starting again from scratch while retaining the priority date. Keep reading to find out what the process is.
EB-2 to EB-1 Green Card Porting
So now that we know the requirements for obtaining an EB-1 green card, we can finally see about EB-2 to EB-1 porting. Keep in mind that just because you feel as though you are qualified, doesn’t mean that the USCIS will accept your petition. Work with an immigration attorney to gather evidence and solidify your case before filing. This process is much more delicate than porting from an EB-3 to an EB-2 green card.
If you have already had an I-140 petition approved for an EB-2 green card and you are from either China or India, you will have to wait several years before a visa number will become available. To bypass this wait time, you could conceivably go through EB-2 to EB-1 porting if you qualify.
EB-2 to EB-1 Porting Process
In order to be considered eligible for the upgrade, however, you must not only obtain the necessary qualifications for one of the EB-1 categories, but you must also obtain a job that fits your newfound qualifications.
Here is an example:
Rateesh has gotten an approved I-140 for his EB-2 green card as an IT specialist for a multinational company. However, because he is from India, his priority date will not be current for at least nine years. During this time, he receives several promotions that land him in a managerial position within the IT company.
In this example, Rateesh might be qualified for EB-2 to EB-1 porting. To do this, he would need to work with his immigration attorney to gather the evidence required to prove his qualifications to the USCIS.
Then, his employer can file a second I-140 under the new EB-1 category. This will allow him to retain his priority date from the first petition. As soon as the new I-140 petition is approved, a visa number will become available as all countries have current priority dates for the EB-1 green card.
However, there is one caveat to the EB-1C green card for multinational managers. One of the main requirements is that the beneficiary must have worked in a managerial or executive capacity for one full year in the three years leading up to the petition. This work must have been done at the company’s offshore branch. Therefore, if Rateesh was currently working in India, he would be in the clear. However, if he was in the U.S. under a nonimmigrant visa such as an H-1B, he would need to return to the Indian branch to work for one full year in order to be considered eligible.
Here is another example:
Cindy has a master’s degree in biochemistry and applied for an EB-2 as a research fellow at a prestigious organization. While she was waiting for her priority date to become current, her work was published in several journals, she gained membership into an exclusive organization for biochemists, and her salary increased to the point of being considerable. This would qualify her for the EB-1A green card. Because the EB-1A does not require a PERM or a job offer, she does not need to obtain a new job in order to port. She simply needs to self-petition and file a new I-140 for the EB-1A along with supporting evidence and fees.
Therefore, porting from an EB-2 to an EB-1 green card is more like filing for a brand new green card from scratch and keeping your original priority date.
Note: in the unlikely event that you were able to secure international acclaim and awards such as the Nobel Prize, you may be eligible for an EB-1A green card and so would not need a PERM or an employer to petition again.
Green Card Porting and 180-Day AC-21 Portability Rule
If you lose or change your job after submitting your employment-based green card petition, you can still retain the application even if you no longer work for the employer that sponsored the petition.
The 180-day portability rule is part of the American Competitiveness in the 21st Century Act which became effective October 17, 2000. Among other things, it addresses the potential hitches that may arise after an I-140 form has been filed and the applicants are waiting for their adjustment of status. The rule provides that an approved I-140 petition will remain valid even if the beneficiary changes his or her job as long as the following conditions are met:
- The I-485, Petition for Adjustment of Status is filed and has been pending with the USCIS for 180 days or more
- The new job meets the same or similar occupational classification with the original petition for which the I-140 was initially approved
How Portability Works
Portability after changing your job
If you change your job after your employment-based green card petition has been pending for 180 days or more, your application will not be denied based on the grounds that you changed jobs. However, you will need to notify the USCIS service center that you no longer intend to work with the employer who sponsored the I-140 petition.
If the USCIS needs you to clarify any issues on this, you will be sent a Request for Evidence (RFE). Once a satisfactory response has been given for the RFE, the USCIS will then request a letter of employment from the new employer. The letter should indicate the new job title, job description, and salary. If all these are of the same or similar occupational classification with the original petition for which the I-140 was approved, then you will likely be approved.
It is also worth noting that even if 180 days haven’t yet passed, you may still be able to attempt portability. However, that will depend on whether the original employer will withdraw the petition before the 180-day point. This has several grey areas and is not as straightforward. It is best to speak to your lawyer if you find yourself in such a scenario.
How is the 180-day period counted?
The 180-day rule under the AC21 Act is governed by the receipt date of the petition. The counting will start from the date your I-485 was received by the USCIS, and not the date when they generated the receipt of notice.
What if there are some differences in the occupational classification?
One of the major rules of porting from one employer to another is to have the same or similar occupational classification. However, if the jobs are not exactly the same, your green card application can still be processed as long the differences are minor.
The language used in the AC21 Act is “same or similar.” In this case, the USCIS will use the DOL’s occupational classification, which is generally broad. It also considers other factors such as the job duties, skills, experience, certification, education, and licenses required for the new job. As long as there are similarities in these areas, the few differences will not matter.
What if there is a salary difference between the former and the new job offer?
While salary is an important factor in all employment-based visa applications, that doesn’t mean every employer should offer the same wages for the same or similar job offer. Therefore, the difference in wage will not affect your ability to port, as long as the occupational classification is similar or the same.
Though the salary difference may be reviewed by the USCIS, the review will only be based on the size of the gap, as a large gap may indicate that the job classification is not similar enough. It is also worth noting that the large salary criteria for the EB-1A green card, for instance, is just one of the eligibility criteria, and you only need to meet at least three out of the ten listed requirements. Your immigration lawyer will be in the best position to guide you on this.
Can a difference in geographical location affect green card portability?
This is unlikely as the new job offer does not have to be in the same location as the one in the original I-140 petition.
What if I have never worked for the employer?
Even if you have never been employed by the employer who sponsored the petition, your green card application will not be denied based solely on that. However, this could cast doubt on whether the original job offer from the employer was bona fide.
Of course, you are allowed to be sponsored by a prospective employer for whom you have never worked before. However, suspicion might arise based on the fact that the prospective employer failed to employ you and suddenly you are opting for the AC21 portability option. If you are in this scenario, be ready to provide evidence showing that the job offer was genuine and the employer indeed had the intent to hire you.
Do I need employment authorization to use AC21 portability?
This will depend on your current nonimmigrant status in the U.S. If you are on H-1B status, for example, the new employer can file an H-1B visa extension for you. This can be achieved even after the expiration of your H-1B period of stay. Immigration law permits H-1 holders who are waiting for a green card to extend their stay beyond the six-year limitation under certain circumstances.
If you are on another nonimmigrant work visa, you may need to request for an employment authorization document (EAD) card. The USCIS will process your EAD application within 90 days of filing. And if you have an existing EAD that is about to expire, you will need to request an extension of the card before the expiration date.
EB-2 and EB-1 Differences
EB-2 Green Card
The EB-2 is designed for people who fall into one of two categories:
- Foreign nationals that have obtained an advanced degree (master’s or higher) in their field.
- Foreign nationals that possess exceptional ability in their field. To prove your ability, you need to submit evidence of at least three of the following requirements:
- A specialized degree relating to your field
- Proof of 10 years of experience in your field
- Any licenses or certifications related to your work
- Command of a substantial salary in your field
- Recognition from your peers or awards
- Membership in an association related to your field
Without a National Interest Waiver (NIW), all EB-2 applicants must have a job offer from a U.S. employer and therefore have that employer acquire a PERM Labor Certification on their behalf. The NIW makes it possible for entrepreneurs and practice owners to self-petition for their EB-2 green cards.
To qualify for an NIW, you must demonstrate three things to the USCIS:
- That your work will benefit the culture, society, education, science, technology, or job market of the United States.
- That you are in a unique position to make your work succeed by showing that you have education, experience, past successes, or current progress.
- That the U.S. would stand to benefit more from waiving the PERM requirement for you than it would by enforcing it. This last item is important since the PERM stands to protect U.S. workers.
EB-1 Green Card
The EB-1 is the most prestigious employment-based green card available. It typically has no priority date wait times and applicants for the EB-1A visa do not need a PERM Labor Certification. However, there are times when a backlog builds up and wait times increase. Here are the three categories of EB-1 green cards.
- EB-1A: This is for foreign nationals with extraordinary achievement in the fields of science, business, education, art, and athletics. These achievements can come as an award such as the Nobel Prize or three of the following types of forms:
- Nationally or internationally recognized awards in your field
- Being a member of an organization in your field that requires extraordinary achievement for entry
- Having media or journal publications recognize your work
- Publishing your own work in scholarly articles or professional journals
- Having made significant contributions to your field
- Having your work displayed at an exhibition
- Retaining an impacting role in an association or organization that has a reputation in your field
- Commanding a large salary that distinguishes you in the field
- EB-1B: This is for outstanding researchers and professors. To qualify, you must:
- Have at least three years of experience teaching or researching in your field
- You have been offered tenure or a research position that does not have a fixed term
- International recognition in your academic field
- EB-1C: This category is reserved for executives and managers.
- To qualify as a manager, you must meet these requirements:
- You must manage a function, component, or function of the organization
- As a manager, you must be able to supervise the work of subordinates and have the ability to fire and hire them.
- You must be able to control daily activities and tasks
- To qualify as an executive, you must fulfill the following requirements:
- Control managers in the organization
- Create plans and goals
- Be able to make far-reaching decisions without supervision
- The employer must also meet some requirements:
- It must be a multinational U.S. organization with a branch, subsidiary, or affiliate in a foreign country
- The employer must also have been doing business in the U.S. for at least a year before filing the petition.
- Additionally, you must have been employed outside the United States in the 3 years preceding the petition for at least 1 year by a firm or corporation and you must be seeking to enter the United States to continue service to that firm or organization. Your employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer.
- To qualify as a manager, you must meet these requirements:
Here are some things to keep in mind about the EB-1 before you attempt to port your EB-2 status. As previously mentioned, the EB-1A does not require either a job offer or a PERM Labor Certification. The EB-1B and EB-1C also do not require a PERM but do require a job offer. Lastly, the premium processing service is not available for the EB-1C, so it may not be the fastest option if you are considering porting to an EB-1C.
How the Priority Dates Work
For all green cards, you or your sponsor must file a petition. When the USCIS receives your petition, that date will become your priority date. Each month, the Department of State releases final action dates in their visa bulletin.
When your priority date matches or passes the final action date in your country and category, your date will be considered “current” and a visa number will become available for you. You will then be able to submit an I-485 to change your status.
The primary benefit of EB-2 to EB-1 porting is to reduce the amount of time you need to wait for your priority date to be current. The usual advantage of applying for an EB-1 is that all dates are current no matter which country you hold your citizenship. That means that as soon as your I-140 is approved, you will be able to adjust your status without waiting.
However, over the past several months, the EB-1 dates have not been current. Due to an influx of EB-1 applicants, a backlog has built up across all categories as of February 2019. Therefore, porting your EB-2 to an EB-1 would actually be a disadvantage, as your priority date waiting time will likely increase significantly (unless you are a citizen of India or China).
However, many of the dates for the EB-2 are also current. If this is the case for you, you would not benefit from porting from an EB-2 to an EB-1. As soon as your I-140 is approved, you will be able to adjust your status.