1. USCIS will generally not deem your I-485 application abandoned if you depart the United States and return on a valid H-1B visa.
A reader asks:
I submitted my I-485, I-131, and I-765, but they haven’t been approved yet. I initially thought leaving the country would only mean forfeiting the I-131 and I planned to return to the U.S. on my H-1B visa. However, I later realized that if I don’t have a combo card, my case will be rejected if I’m abroad with the I-485 being processed. Is this true? My question is, can I leave the country six months after submitting the I-485?
Arthur Lee Esq. Answers:
If you are in valid H-1B status with a valid visa in your passport, USCIS will generally not deem your I-485 application abandoned if you depart the United States and return on the H-1B visa. Assuming that your H-1B visa and status will still be valid 6 months from now, and that you will still be in the same job which conferred you H-1B status, USCIS will not likely deny your I-485 due to your travel outside the United States. To minimize your risk of being denied entry on your H-1B visa, you should bring your official H-1B approval as well as sufficient evidence that you are still in your H-1B job being paid at least the salary stated on your company’s I-129 petition on your behalf. Such evidence may include but is not limited to a job letter by the company verifying your position title and salary, and recent paystubs from your employer.
2. A Porting Determination
A reader asks:
I applied for EB-3, had my green card interview in October 2023, but it has been stuck at “Interview Completed, Under Case Review” until now (October 2024). I emailed the immigration office, and their response was that my case is still within the normal processing time. I’ve already submitted my I-485 and received a new offer, but the base salary is $20,000 less than my old company. If i take this new job and submit a new I-485J with the new company, will the lower salary affect my case?
Arthur Lee Esq. Answers:
Under job porting, you are allowed to take a position that is in the “same or similar” occupational category as your position that is the basis of your I-140 petition. After you submit your I-485J (which can be submitted in response to an RFE, at an adjustment of status interview, or proactively if you wish), USCIS will take a myriad of factors into account to determine whether your position is “same or similar” to the one that is the basis of your I-140 approval. These factors include but are not limited to the DOL assigned occupational code for the new position; the job title; job duties; required skills and expertise; educational and training requirements; licenses or certifications typically required; offered wage or salary; and any other credible evidence submitted that demonstrates that the position is in the “same or similar” job classification. USCIS understands that sometimes employees find themselves in situations (such as being laid off or feeling disgruntled in a place they work) where they must make lateral moves or even take lower salaries. So in your situation, the lower wage is a negative factor. However, that may not be fatal in a porting determination if on balance, the rest of the listed factors demonstrate that your job is in a “same or similar” job occupation.