Previously, due to United States Citizenship and Immigration Services (USCIS) regulations, a foreign national applying for employment-based permanent residency would need to first obtain an I-140 Immigrant Petition for Alien Worker[1] before they applied to file form I-485 Application to Apply for Permanent Resident Status[2]. Now, due to portability provisions[3] under the American Competitiveness in the Twenty-first Century Act of 2002 (AC21), it is possible to file both the I-140 and I-485 simultaneously. The portability provision allows for an H-1B employee to change jobs without the risk of being out of status. Once your I-485 has been pending for a least 180 days, you may be allowed to leave your current employment for a new job with the “same or similar occupational classification.”[4]

Processing unapproved concurrent petitions that have been pending at least 180 days

  1. The case must be approvable during the 180-day period. The USCIS will review your pending I-140 petition to determine if evidence submitted establishes that the case is approvable or would have been if adjudicated in 180 days.
  2. The new position must be the same or similar occupational classification. The I-485 application will be adjudicated if the new employment is the same or similar classification. To determine that, the USCIS will review the job duties described in the 750ETA or the I-140 compared with the new employment job duties. It will also consider the DOT code and/or SOC code assigned to the initial I-140 employment compared to the new employment. The new and previous wage will also be compared for any disparities.

Before leaving your current employer for a new job, make sure that you qualify under the following:

  1. Your I-140 has been approved or is approvable when filed concurrently with the I-485.
  2. You I-485 has been pending for a minimum of 180 days.
  3. The new employment is the same or similar occupation classification.[5]