By Attorneys Robert L. Reeves, Joseph I. Elias & Nancy E. Miller
The skilled worker immigrant visa category known as EB-3 is one of the most heavily used categories for obtaining permanent resident status. The demand for this category is so great that it created a six-year backlog in visa availability. What this means is, today, the USCIS is only able to adjust the status of EB-3 immigrants whose employers sponsored them six or more years ago. Adjustment applications are filed when visa numbers are available. If visa numbers should retrogress before adjustment applications are granted, the USCIS will hold these applications in abeyance until visa numbers become available once more.
Currently, there is a huge pool of EB-3 applicants with adjustment of status applications pending before the USCIS. These applicants have been waiting for six or more years for their priority dates to become current. Within the next few months, their visa numbers should be available and their status can be adjusted to permanent resident as long as they meet certain requirements.
The primary requirement is that the EB-3 immigrant will work for his or her petitioning employer, on a permanent full-time basis, in the position petitioned for once adjustment of status is granted. This may be an impossible requirement to meet for many because of events that occurred while they waited. Some received promotions, some changed careers, and others changed employers. Unfortunately, some lost their employers either through downsizing or their employers going out of business due to the recession.
Many EB-3 immigrants are under the assumption that they are being granted permanent resident status because they previously worked for their petitioning employer. Sadly, this is wrong. Rather, adjustment is granted for future employment with the petitioner when visa numbers become available. It comes as a shock to many to learn that by changing employers, accepting a promotion, changing careers, or losing a petitioning employer they also lose the basis for permanent resident status.
Congress recognized that life does not stand still while employment-based immigrants wait to adjust their status. It therefore provided a form of relief for employment-based immigrants to continue to adjust their status if they experience a change in circumstances. This relief is known as “porting”. Porting is only available for those adjustment of status applicants whose applications have been pending before the USCIS for six months or more. Under porting, EB 3 applicants may move their approved petitions to a new employer and complete their adjustment as long as the new position is in the same or similar occupation. Porting may also be used with the same petitioning employer for a new position in the same or similar occupation to cover those promoted in their field.
For example, an employer petitions an immigrant as an entry-level accountant. Over the next six years the immigrant performs well and is promoted to the position of controller. This is a different position than the one originally petitioned for. Prior to the availability of porting, the immigrant would be required to take a demotion back to the position of entry-level accountant once his adjustment of status was granted. But, under porting, since the promotion is in the same or similar occupation, the immigrant would be allowed to adjust status.
Porting does not happen automatically. It requires a formal request and notification by the immigrant to the USCIS of his or her election to port employers. This must occur before the adjustment of status application is granted. If the immigrant fails to file the election to port employers on time, his or her permanent resident status (and that of dependent family members) can be rescinded or revoked.
The ramifications of not properly filing a timely election to port are severe. Therefore, it is essential that EB-3 immigrants who will not be working for their petitioner carefully and properly port employers before their adjustment of status applications are granted. EB-3 immigrants whose priority dates are about to become current should immediately consult with an immigration attorney. They must ensure that a proper election to port is filed in order to preserve immigration benefits for the immigrant and his or her family.