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NAFSA Questions for Nebraska Service Center Open House March 23, 2004
AC21 Issues:
48. Would the new employer need to file its own I-140 in the following scenarios in order to protect the viability of an employment-based I-485 pending over 180 days at the time of the job change:
• The previous employer withdraws its I-140 after I-140 approval No, not necessarily.
Withdrawal of the I-140 after the approval with an I-485 that has been pending +180 days may be amenable to portability provisions if the occupational classification is in the “same or similar” classification.
• The previous employer withdraws its I-140 while the I-140 is still pending
Yes. If the I-140 has been withdrawn prior to approval and the I-485 has not been pending +180 days the new petitioner should file another I-140 and the applicant would need to refile a complete I-485
49. When does the portability of an I-485 arise – 180 days after the filing of the I-485 or 180 days after approval of the I-140, assuming the I-485 has also been pending 180 days?
Portability for I-485s is based upon the filing date of the properly filed I-485. It is not based upon the approval
date of the I-140
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In the above,
1. Portablity arises from the I-485 filing date, ie Receipt date.
2.NSC did not say that we cannot use AC21 while I-140 is pending.
3. "If the I-140 has been withdrawn prior to approval AND the I-485 has not been pending +180 days" then only the whole thing will be invalid and need to file I-140/I-485 again.
4. So if I-485 is pending for more than 180 days and if you change employer before I-140 approval, nothing happens to your I-485 processing.
Gurus, Any comments about this??
nanshi.
NAFSA Questions for Nebraska Service Center Open House March 23, 2004
AC21 Issues:
48. Would the new employer need to file its own I-140 in the following scenarios in order to protect the viability of an employment-based I-485 pending over 180 days at the time of the job change:
• The previous employer withdraws its I-140 after I-140 approval No, not necessarily.
Withdrawal of the I-140 after the approval with an I-485 that has been pending +180 days may be amenable to portability provisions if the occupational classification is in the “same or similar” classification.
• The previous employer withdraws its I-140 while the I-140 is still pending
Yes. If the I-140 has been withdrawn prior to approval and the I-485 has not been pending +180 days the new petitioner should file another I-140 and the applicant would need to refile a complete I-485
49. When does the portability of an I-485 arise – 180 days after the filing of the I-485 or 180 days after approval of the I-140, assuming the I-485 has also been pending 180 days?
Portability for I-485s is based upon the filing date of the properly filed I-485. It is not based upon the approval
date of the I-140
*************************************************
In the above,
1. Portablity arises from the I-485 filing date, ie Receipt date.
2.NSC did not say that we cannot use AC21 while I-140 is pending.
3. "If the I-140 has been withdrawn prior to approval AND the I-485 has not been pending +180 days" then only the whole thing will be invalid and need to file I-140/I-485 again.
4. So if I-485 is pending for more than 180 days and if you change employer before I-140 approval, nothing happens to your I-485 processing.
Gurus, Any comments about this??
nanshi.
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