USCIS UPDATES GUIDANCE ON EMPLOYERS’ ABILITY TO PAY WHEN A BENEFICIARY PORTS TO A NEW EMPLOYER UNDER AC21

On January 05, 2024, the USCIS updated its policy manual to clarify how the UCSIS will determine an employer’s ability to pay when an employment-based green card applicant ports to a new employer under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21).

The AC21 allows certain employment-based green card applicants to port, or change employers, without filing a new Form I-140 petition. Under certain circumstances an employment-based green card applicant can change employers when their Form I-140 petition and Form I-485 application are concurrently filed and remain pending.

The USCIS has explained that when a green-card applicant changes employers while Form I-140 is pending, USCIS will only consider the facts existing at the time of filing when making an ability to pay determination. In other words, USCIS will only review initial evidence submitted with the Form I-140 petition (and any responses to Requests for Evidence) to determine if the petitioner has established its ability to pay from the priority date to the date of filing the I-140 petition.