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Portability Issues: Validity Periods, Priority Dates, Employment Offers

Once your I-140 is filed, and 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 due to 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, Co., LPA have decades of combined experience in this area. Contact us for a consultation.

When is my I-140 no longer valid for porting purposes?

There are two situations where your I-140 would no longer be valid for porting. The first is when the I-140 is withdrawn before your I-485 has been pending for 180 days. The second is when the I-140 is denied or revoked at any time, unless it is revoked based on a withdrawal that was submitted after the I-485 has been pending for 180 days. The approved I-140 petition remains valid even if your original sponsoring employer requests a revocation of your I-140 if your I-485 application has been pending for at least 180 days at the time of the revocation or withdrawal. If you chose concurrent I-485 and I-140 filing, you may have an advantage because you are accruing time toward the 180 days while your I-140 is pending, so long as the I-140 is finally approved.

Can the 180 days accrue during a period when visa numbers are unavailable?

Yes. Once your I-485 is filed, if visa numbers then become unavailable, the I-485 application will still accrue days toward the 180 pending period that is necessary before porting eligibility becomes available. The fact that a visa number becomes unavailable after the filing of the I-485 application does not stop the number of days required for I-140 portability eligibility from accruing.

Will porting change my priority date?

No, porting will not change your priority date. Even if you take advantage of porting eligibility, your priority date would still be determined by the date of your initial labor certification filing with the Department of Labor, or the I-140 petition filing date in cases where labor certification is not required.

When must I have a new offer of employment?

You cannot take advantage of the portability provisions if you are still looking for new employment in the "same or similar occupational classification" when your I-485 is being adjudicated. You must be able to show that there is a new valid offer of employment at the time your I-485 is adjudicated.

It may be in your best interest to avoid a withdrawn I-140 before you can successfully port to new employment if at all possible, otherwise you will not be able to port if your I-140 is withdrawn before the I-485 has been pending for 180 days, and then you may be required to start all over with a new labor certification. If you do obtain new employment, be sure to obtain an offer from your new employer as evidence that the offer is valid. 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, Co., LPA at the nearest office close to you to consult with an attorney.

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