Updated USCIS Guidance on Establishing Ability to Pay after AC21 Portability

On January 5, 2024, the U.S. Citizenship and Immigration Service (USCIS) issued updated guidance in the USCIS Policy Manual regarding how officers are to adjudicate pending immigrant petitions for alien workers (form I-140) when an employee ports to a new employer under the American Competitiveness in the Twenty First Century Act (AC21).

Employer’s Requirement to Establish Ability to Pay

In the typical employment-based permanent residence (commonly, “green card”) case, the second stage of the three-stage process is the employer’s filing of the I-140 petition for the foreign national worker. The petitioner or employer filing the I-140 typically must prove that it can pay the offered wage indicated on the PERM labor certification. The USCIS, in making a decision on the I-140 petition, requires the employer to establish its financial ability to pay the prevailing wage as of the date the PERM labor certification was filed, which is also referred to as the “priority date,” as explained in the MurthyDotCom NewsBrief Requirement to Prove Ability to Pay in an I-140 Petition (31.Aug.2020).

Eligibility Requirements for AC21 Portability

AC21 allows an individual with an employment-based pending application for adjustment of status (form I-485) to move to a new position that is in the “same or similar occupational classification” as the one set forth in the underlying PERM labor certification. To be eligible for AC21 portability, an individual must have an I-485 that has been pending for at least 180 days and either an approved I-140 or a pending I-140 that was approvable when filed.

Updated USCIS Guidance on I-140 Adjudication After AC21 Portability

When an individual moves to a new position using AC21 portability where the I-140 is still pending, the employer that filed the I-140 technically is supposed to demonstrate the ability to pay the offered wage throughout the pendency of the I-140 petition until it is approved. The updated USCIS guidance, however, clarifies that, in such cases, the USCIS will adjudicate the I-140 based on the evidence of the employer’s ability to pay as initially submitted and based on the facts in existence at the time of filing. Although the USCIS may request additional evidence if the initial evidence provided was deficient, the USCIS generally will not require evidence of the employer’s continued ability to pay past the time of filing.

Conclusion

The updated guidance is a welcome clarification for an individual who moves to a new employer during the green card process. For many, the employment-based green card process can be lengthy. When new employment opportunities present themselves during the wait, it is important to consult with a qualified U.S. immigration attorney to minimize the risk that an individual’s pending green card application will be jeopardized.

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