Source: www.immigration-law.com
Actual Memo: http://www.shusterman.com/pdf/ac21-51205.pdf
05/18/2005: USCIS Reverses Policy on I-140 Portability After EB-485 Pending 180 Days
* AILA has reported a new USCIS Memorandum of May 12, 2005 on AC 21 issues which have either been answered or unanswered. In the answered issues, the USCIS is amending its policies. One of these key issues which it reverses by this new memorandum is I-140 portability after 180 days of filing of EB-485 applications.
* When the alien beneficiary changes employment before I-140 petition is approved but I-485 application has been pending 180 days or longer, the USCIS field offices have been instructed not to automatically deny such I-140 petition and I-485 applications unless they first take the following steps:
o First determine whether the preponderance of the evidence establishes that the I-140 petition is approvable or would have been approvable, had it been adjudicated within 180 days.
o If the I-140 petition is approvable but for an ability to pay or any other issues relating to a time after the filing of the petition, the USCIS should approve the I-140 petition on its merits.
o The adjudicator should determine whether the new employment is "same or similar" occupational classification.
o If the answer is yes, the adjudicator should approve EB-485 applications.
* In taking the foregoing steps, should the adjudicator has an issue of RFE, particularly the issue of employer's ability to pay the proffered salay, the adjudicator should issue RFE, and upon receiving the RFE responses, if the evidence meets the approvable thresholds, the adjudicator should perform the foregoing procedure and conclude the adjudication of I-140 petition and I-485 application.
* In the context of RFE, if the response is not received or even if the response is received and the reponse does not adequately address the issues or the response is simply that the beneficiary no longer works for the petitioner, the petition is considered unapprovable and consequently the I-140 will be denied and at the same time, I-485 will also be denied.
05/18/2005: Change of Employment Before Reaching 180-day of EB-485 Filing and Its Affect on Pending I-140 Petition and EB-485 Application
* The USCIS AC 21 Memorandum of May 12, 2005 addresses the issue of changing of employment for the alien who filed concurrent I-140/EB-485 and changed employment before reaching 180 days. It states that the I-140 and EB-485 should not be denied solely on this basis inasmuch as it is established that the I-140 was filed concurrently with the I-485, the I-140 petition had the intent to employ the alien beneficairy, and the alien must also have intended to under the employment upon approval of I-485 application. Accordingly, the memo warns the adjudicators that they should not presume absence of such intent and take the I-140 and supporting documents themselves as prima facie evidence of such intent. They should rather issue RFE in appropriate cases or investigate the issue when it is warranted.
* However, following final decision of the USCIS prior to reaching 180 days of EB-485 application will lead to denial of the concurrently filed EB-485 applications:
o The petitioner withdraws the I-140 petition before reaching 180 days of EB-485 filing, or
o USCIS denies or revokes the I-140 petition. The same will apply even after 180 days of EB-485 filing. However, the petitioner's withdrawal of petition after 180 days of EB-485 filing will have no effect on the portability of I-140 petition and no effect on the adjudication of EB-485 applications.
Actual Memo: http://www.shusterman.com/pdf/ac21-51205.pdf
05/18/2005: USCIS Reverses Policy on I-140 Portability After EB-485 Pending 180 Days
* AILA has reported a new USCIS Memorandum of May 12, 2005 on AC 21 issues which have either been answered or unanswered. In the answered issues, the USCIS is amending its policies. One of these key issues which it reverses by this new memorandum is I-140 portability after 180 days of filing of EB-485 applications.
* When the alien beneficiary changes employment before I-140 petition is approved but I-485 application has been pending 180 days or longer, the USCIS field offices have been instructed not to automatically deny such I-140 petition and I-485 applications unless they first take the following steps:
o First determine whether the preponderance of the evidence establishes that the I-140 petition is approvable or would have been approvable, had it been adjudicated within 180 days.
o If the I-140 petition is approvable but for an ability to pay or any other issues relating to a time after the filing of the petition, the USCIS should approve the I-140 petition on its merits.
o The adjudicator should determine whether the new employment is "same or similar" occupational classification.
o If the answer is yes, the adjudicator should approve EB-485 applications.
* In taking the foregoing steps, should the adjudicator has an issue of RFE, particularly the issue of employer's ability to pay the proffered salay, the adjudicator should issue RFE, and upon receiving the RFE responses, if the evidence meets the approvable thresholds, the adjudicator should perform the foregoing procedure and conclude the adjudication of I-140 petition and I-485 application.
* In the context of RFE, if the response is not received or even if the response is received and the reponse does not adequately address the issues or the response is simply that the beneficiary no longer works for the petitioner, the petition is considered unapprovable and consequently the I-140 will be denied and at the same time, I-485 will also be denied.
05/18/2005: Change of Employment Before Reaching 180-day of EB-485 Filing and Its Affect on Pending I-140 Petition and EB-485 Application
* The USCIS AC 21 Memorandum of May 12, 2005 addresses the issue of changing of employment for the alien who filed concurrent I-140/EB-485 and changed employment before reaching 180 days. It states that the I-140 and EB-485 should not be denied solely on this basis inasmuch as it is established that the I-140 was filed concurrently with the I-485, the I-140 petition had the intent to employ the alien beneficairy, and the alien must also have intended to under the employment upon approval of I-485 application. Accordingly, the memo warns the adjudicators that they should not presume absence of such intent and take the I-140 and supporting documents themselves as prima facie evidence of such intent. They should rather issue RFE in appropriate cases or investigate the issue when it is warranted.
* However, following final decision of the USCIS prior to reaching 180 days of EB-485 application will lead to denial of the concurrently filed EB-485 applications:
o The petitioner withdraws the I-140 petition before reaching 180 days of EB-485 filing, or
o USCIS denies or revokes the I-140 petition. The same will apply even after 180 days of EB-485 filing. However, the petitioner's withdrawal of petition after 180 days of EB-485 filing will have no effect on the portability of I-140 petition and no effect on the adjudication of EB-485 applications.
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