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I-140 with I-485 Concurrent Filing

The Law Firm of Shihab & Associates in Columbus Ohio, Cleveland Ohio, Southfield Michigan and Washington, D.C.

In certain situations as an employment-based worker, you may be able to file the I-140 petition and the I-485 application together concurrently before obtaining the approved I-140 first. Whether or not you file the I-485 and I-140 concurrently, while your I-485 is pending, you may be able to leave your current employer and take a new job in a "same or similar occupational classification" after the I-485 has been pending for at least 180 days. This can be done by taking advantage of the portability provisions under the American Competitiveness in the Twenty-first Century Act of 2002 (AC21).

If you have questions about I-140 portability and I-485 concurrent filing, the attorneys at The Law Firm of Shihab & Associates have decades of combined experience in this area. Contact us for a consultation.

Can I Port to Self-Employment?

Yes, you may be able to port to self-employment in certain circumstances. The new self-employment occupation classification must be the "same or similar" to that of your original I-140 employment. The USCIS may request additional information to verify this through a Request For Evidence (RFE), and it will focus on whether the I-140 employer truly had the intent to employ you at the time the I-140 and I-485 were filed, and you must have had the intent to accept the employment. The USCIS should not presume that such intent did not exist, and it may accept the I-140 and supporting documents as evidence of intent.

In an I-140 Portability Case, Is a New Employer Required to Provide a New Labor Certification?

No, successor employers are not required to obtain a new labor certification in adjustment portability cases for those occupations that conventionally require one. The underlying labor certification remains valid if the conditions of portability are met.

What if I Leave the I-140 Employer Before the I-485 Application Has Been Pending for 180 days?

The USCIS should not deny portability cases on the sole basis that you left your employment prior to the point that the I-485 was pending for 180 days. The adjustment of status is based upon the prospective employment of the original I-140, not your actual current employment subsequent to porting. You are not required to actually work for the I-140 employer while the I-140 and I-485 are pending. Leaving the I-140 employer does not necessarily render you ineligible to port. The I-140 employer must be bona fide, meaning that the employer had the intent to employ you, and you must have had the intent to accept the employment, at the time the I-140 and I-485 were filed. The USCIS should not presume that such intent did not exist, and it may accept the I-140 and supporting documents as evidence of intent.

If you wish to leave your current employer and take a new job, and you must do so before the I-485 petition has been pending for 180 days, this can be done without the necessity of a new labor certification provided that the portability conditions of AC21 are met, as described above, and be prepared to establish that your I-140 employment was indeed bona fide.

Under certain circumstances, you may be able to file both the I-140 petition and the I-485 application together concurrently without having to first get an approved I-140. This is permitted due to portability provisions under the American Competitiveness in the Twenty-first Century Act of 2002 (AC21). This means that while your I-485 is pending, you may be able to leave your current employer and take a new job in a "same or similar occupational classification" after the I-485 has been pending for at least 180 days.

Does a "Same or Similar" Occupation Classification Need to Have the Same Geographic Location?

The answer to this question is no. To determine whether an occupation classification is "same or similar" to your I-140 employment, the inquiry is to consider your new position and job duties and not the geographic location of your new employment.

Is New Employment Required to Have the Same Wage to Be Classified as a "Same or Similar" Occupation?

A difference in wage between your I-140 employment and your new employment cannot be a basis for denial of your I-485 adjustment application. However, it is taken into consideration as a factor if there is a significant discrepancy between the previous wage and the new wage.

If I Am a Multinational Manager or Executive, Do I Have Portability Benefits Even if My New Employment Is with an Unrelated Company?

Yes, you do have portability benefits when you change to a new job as a manager or executive even for an unrelated company. However, you may not benefit from porting if your new job position is not in the same or similar occupational classification as your I-140 employment, such as a situation where your new job duties are vastly different from your I-140 job duties.

Is It Necessary to Provide Proof of the New Employer's "Ability to Pay?"

No, the relevant inquiry in making a determination of portability is whether the new position is the same or similar occupational classification as your I-140 position. However, the USCIS may seek to confirm the legitimacy of the new employer and the job offer with a Request For Evidence (RFE) to inquire about the public charge issue regarding the adjustment of status application.

Obtaining an approved labor certification process can be a complicated and time-consuming process. Taking advantage of the portability provisions of AC21 can be beneficial in the event you decide to leave your current employer and take a new job with a new employer because you can do so without the requirement of a new labor certification, provided that your new job in a "same or similar occupational classification."

If you have questions about I-140 portability and I-485 concurrent filing, please contact our immigration attorneys or call The Law Firm of Shihab & Associates at (614) 412-4850 to consult with an attorney.

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