Quick Summary:
If your I-485 adjustment of status has been pending for more than 180 days and your I-140 has been filed, U.S. law under the AC21 portability rule may allow you to change employers, even for a new job with a higher salary. But the process is complex, and mistakes can jeopardize your green card. In this guide, you’ll learn what the law says, when you can safely switch, and what steps you must take to protect your future in the U.S.
Understanding AC21 Portability For Pending I-485 Applicants
Under the American Competitiveness in the Twenty-First Century Act of 2000 or “AC21” portability rule, you may change employers after your I-140 based I-485 has been pending for at least 180 days, provided your I-140 is approved or is pending is ultimately approved and the new job is in a “same or similar occupational classification.”
AC21 was created to give workers flexibility while waiting in long green card backlogs. It prevents individuals from being tied indefinitely to one employer. This means that after meeting certain conditions, you can “port” your green card process to a new employer without having to restart your case.
For example:
- A software engineer working for a large IT company whose I-485 has been pending for two years may accept a higher-paying role as a senior software developer with another tech firm.
- A financial analyst promoted to senior analyst at a new employer can port if the duties remain in the same occupational category.
This protection is powerful but it’s not automatic- documentation and legal strategy are crucial.
AC21 Portability After 180 Days: What The Law Allows
AC21 portability after 180 days requires an approved or pending I-140 and a Form I-485 that has been pending for at least 180 days. The new job must be in the same or similar occupational classification.
If your case meets these requirements, you can legally change employers without having to redo the PERM and I-140 with the new employer. USCIS evaluates whether your new role aligns with the original job described in your labor certification or I-140. Factors considered include job duties, required skills, and the Department of Labor’s standard occupational classifications.
Checklist for AC21 Portability After 180 Days:
- I-140 petition should ultimately be approved
- I-485 must be pending at least 180 days
- New job must be in the same or similar occupational classification
- Supplement J must be filed by the new employer USCIS to confirm the new offer
Case Example: A data scientist with an approved I-140 and I-485 pending for 1 year receives an offer as a machine learning engineer. The job duties and same occupational classification indicate that the roles are similar – portability applies.
Can I Change Employers Before 180 Days?
Yes, but you risk the I-485 being denied. AC21 portability protection does not apply before 180 days. If you switch employers before the I-485 has been pending for 180 days, your green card application may be denied.
The law is clear: your I-485 must remain pending for at least 180 days before portability protections apply. Leaving too early risks having no valid petition supporting your adjustment of status.
Scenario: An applicant with an approved I-140 changes jobs after only 90 days of filing the I-485. If the employer withdraws the I-140, the I-485 is no longer approvable. The withdrawal of the I-140 before 180 days leaves the applicant with no valid underlying petition.
Tip: If you’re close to the 180-day mark, consult an immigration attorney before making any move. A few weeks can make the difference between approval and denial.
Higher Salary or Job Title Changes: Does It Matter?
A higher salary, lateral move or a promotion generally does not affect AC21 portability, as long as the job remains in the same or similar occupational classification.
USCIS recognizes that career progression often involves salary increases and title changes. What matters is whether the nature of the job duties remains substantially similar.
Example 1: Moving from “Software Developer” at $90,000 to “Senior Software Engineer” at $130,000 is acceptable if duties overlap.
Example 2: Moving from “Marketing Associate” to “Director of Business Development” may raise issues because the occupational classifications may differ significantly depending on the job duties and responsibilities involved.
Tip: Always have your attorney compare SOC (Standard Occupational Classification) codes before accepting that new job!
Practical Next Steps To Secure AC21 Portability
If you qualify for portability, you must notify USCIS by filing the Form I-485 Supplement J with details of your new employer and job offer.
Here’s a step-by-step roadmap:
- Confirm Eligibility – Ensure your I-140 was approvable when filed or has been approved and the I-485 has been pending at least 180 days.
- Evaluate Job Duties – Compare the new position with the old one to confirm they are “same or similar.”
- File Supplement J – Submit I-485 Supplement J to notify USCIS of the new offer of employment.
- Maintain Records – Keep job descriptions, offer letters, and proof of employment handy for future USCIS requests.
- Seek Legal Review – Small missteps (e.g., mismatched job codes) can trigger Requests for Evidence (RFEs) or denials.
Tip: Although USCIS can approve an I-140 even after you leave as long as it’s been pending for 180 days and the I-485 has been pending for 180 days, only an already approved I-140 offers guaranteed protection.
Case Study: A physician whose I-485 has been pending for 3 years moves from a hospital employer to a private practice. By filing Supplement J with legal guidance, portability was approved without issue.
Risks, Challenges, and Common Misunderstandings
The biggest risks with AC21 portability generally arise if you leave before the I-485 has been pending for 180 days or before the I-140 has been approved, choosing a dissimilar job, or failing to file Supplement J.
Common Myths vs. Facts:
- Myth: Any higher-paying job qualifies.
- Fact: Salary increases are fine, but job duties must still align.
- Myth: If my I-140 is withdrawn, I lose portability.
- Fact: If the withdrawal happens after 180 days, AC21 portability protections generally preserve your eligibility.
- Myth: USCIS automatically knows about my new job, especially if I file an H-1B change of employer.
- Fact: You must affirmatively file Supplement J to notify USCIS.
Why Legal Guidance Is Critical
Changing employers while your green card is pending is one of the most sensitive immigration decisions you can make. While AC21 portability offers freedom, one wrong move can derail years of waiting. VisaPro has successfully helped professionals across IT, finance, healthcare, and academia navigate AC21 change of employer strategies, defend against USCIS RFEs, and secure green card approvals even in complex scenarios.
👉 VisaPro can help you evaluate your new job offer, prepare Supplement J, and safeguard your green card process. Schedule your free strategy call today.
Frequently Asked Questions About EB-1C for Startup Executives
1.What is AC21 portability?
It allows you to change employers if your I-140 is approved or is ultimately approved and your I-485 has been pending for at least 180 days, provided the new job is in the same or similar occupational classification.
2.Can I use AC21 portability before 180 days of the I-485 pending?
No. leave your employer before the I-485 is pending for 180 days does not provide AC21 portability protection. Leaving your employer before that time can result in denial of the I-485 if the I-140 is withdrawn.
3.Does AC21 change of employer affect my green card priority date?
No. Your original priority date is preserved when porting under AC21, as long as the I-140 remains valid for 180 days.
4.What happens if my employer withdraws the I-140 after 180 days?
If your I-140 was approved and your I-485 has been pending for 180+ days, AC21 green card portability protections usually allow you to continue your adjustment of status application, even if the employer withdraws the I-140.
5.How do I prove my new job is “same or similar” for AC21 portability?
USCIS looks at job duties, required skills, and SOC codes, among other factors. A higher salary or title alone don’t matter; the roles must substantially overlap. Supplement J is the key filing to document this.
Need help deciding whether your new role qualifies under AC21 portability or how to file Supplement J without risking delays?
VisaPro has successfully guided professionals through the most complex AC21 green card portability cases, safeguarded applicants during employer withdrawals, and defended approvals against USCIS RFEs. Schedule your free visa assessment today. and take the first step toward securing your green card and your future in the United States.
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