Effective Tuesday, January 17th, a new form is required to claim “portability” benefits that allow certain applicants for Adjustment of Status to U.S. Lawful Permanent Resident to continue their pending permanent residency processes with a new employer. Applicants for Adjustment of Status who have had I-485 Application pending for at least 180 days may “port” their existing permanent residency process to new employment that is in the same or similar occupational classification.

The new form is required by the “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” regulation published as a final rule on November 18, 2016, with an effective date of January 17, 2017. The new rule provides that the CIS may require, or an applicant may affirmatively submit, the Form I-485 Supplement J to document a valid offer of permanent employment exists.

The Supplement J must be signed by both the employer representative and the Adjustment of Status applicant. The form requires verification that the original offer of permanent employment continues, or that the applicant intends to claim portability benefits to continue the existing permanent residency process in a new position that is in the same or similar occupational classification. It also requires entry of the date of filing of the I-485 as well as case numbers for the I-485 and the underlying I-140 petition.

Employers must provide the following details regarding the offer of permanent employment in the new Supplement J:

1. Confirmation of the original offer of employment in the same position as listed on the I-140 petition with the original petitioning employer, OR
2. Details of the new, qualifying offer of permanent employment:
   • Job title
   • Occupational code
   • Job description
   • Confirmation that the employment is full time and permanent
   • Salary offered
   • Address where work is to be performed
   • Beneficiary’s current employment status and start date of employment with the employer

U.S. Citizenship & Immigration Services (CIS) will use the information to evaluate the new offer of permanent employment to determine whether the new position is in the same or similar occupational classification as the original offer.

It is anticipated that the CIS will require the new form by issuing a Request for Evidence (RFE), especially in connection with long-pending I-485 Applications, or those I-485 Applications filed many months or years after the original I-140 Immigrant Visa Petition was approved. Applicants may seek to avoid the RFE process by submitting the Supplement J proactively. Proactively submitting the Supplement J may help avoid potential delays in final adjudication.

Foster recommends that all cases of portability be evaluated to ensure the regulatory requirements are met prior to submission of the new Supplement J. Contact your Foster attorney for assistance in identifying those employees current reliant on portability benefits and for assistance in evaluating eligibility and preparing and filing the new Supplement J to claim portability. Taking action now may avoid delay in adjudications or CIS mistakes in adjudication that could impact the CIS adjudication time frame and outcome.

For more information, contact your Foster immigration attorney. Your Foster attorney will assist you in evaluating a candidate’s eligibility and will be able to provide you with case-specific strategies for submission of the Supplement J.