I-140 Portability, Changing Employers While I-140 Is Pending
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Under previous USCIS regulations, a foreign national seeking employment-based permanent residency was required to first obtain an approved I-140 before applying for permanent resident status by filing Form I-485. Now, you can file both the I-140 and the I-485 together. Under certain circumstances, the concurrent filing of the I-140 and the I-485 is permitted due to portability provisions under the American Competitiveness in the Twenty-first Century Act of 2002 (AC21). If you have a pending I-485, 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. 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.
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Processing Unapproved Concurrent Petitions that Have Been Pending 180 Days
How do USCIS service centers and district offices process unapproved I-140 petitions that were filed concurrently with I-485 applications that have been pending 180 days in relation to the I-140 portability provisions under AC21?
The Case Must Have Been Approvable During the 180 Day Period
When the USCIS discovers that you have ported off an unapproved I-140 and I-485 that has been pending for 180 days or more, the following procedures apply. The Service will review your pending I-140 petition to determine if the preponderance of the evidence establishes that your case is approvable or would have been approved if it was adjudicated within 180 days. If the Service determines that your petition is approvable, it is approved on the merits.
The New Position Must be the Same or Similar Occupational Classification
Next, the Service would adjudicate your I-485 application to determine if the new position is the same or similar occupational classification for I-140 portability purposes. When making a determination if the new employment is the "same or similar" occupational classification in comparison to the employment in the initial I-140, adjudicators will consider the following factors. The description of the job duties contained in the 750ETA or the I-140 are compared with the job duties of the new employment. The DOT code and/or SOC code assigned to, or appropriate for, the initial I-140 employment is compared with the DOT code and/or SOC code for the new position. The previous wage and the new wage are compared to determine whether there is a substantial discrepancy.
If you have filed an I-140 and you wish to leave your current employer and take a new job, be sure that new job in a "same or similar occupational classification" and that your I-485 has been pending for at least 180 days in order to take advantage of the portability provisions of AC21.
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