Now don't worry AC21 guys. Just enjoyed after 180 days
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US IMMIGRATION HEADLINES 08/11/2003 - BCIS Issues Memo on I-485 Portability
August 11, 2003 -- In a memorandum dated August 4, 2003, the Bureau of Citizenship and Immigration Services has issued guidance on I-485 portability in the context of concurrent filing and Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 200 (AC21).
The memo first summarizes BCIS's interpretation of AC21 § 106(c), stating that if a Form I-140 has been approved and the Form I-485 has been filed and remained unadjudicated for 180 days or more, the approved I-140 will remain valid even if the foreign national changes jobs or employers, as long as the new offer of employment is in the same or similar occupational classification. If the I-485 has been pending for less than 180 days, the approved I-140 does not remain valid with respect to a new offer of employment. The memorandum confirms that the I-140 must be approved for portability to be available.
The memorandum goes on to discuss the effect of revocation or withdrawal of an approved I-140 on a pending I-485. The guidance on this issue is as follows:
According to BCIS, if the employer withdraws the approved Form I-140 on or after the date that the Form I-485 has been pending 180 days, the approved I-140 remains valid under the provisions of Section 106(c) of AC21.
BCIS expects that a foreign national will have submitted evidence that his or her new offer of employment is in the same or similar occupational classification.
If the underlying Form I-140 has been withdrawn and the foreign national has not submitted evidence of a new qualifying offer of employment, the adjudicating officer must issue a Notice of Intent to Deny the pending Form I-485.
If the foreign national timely responds to the Notice with evidence of a qualifying job offer, the BCIS may consider the Form I-140 to remain valid with respect to that offer and regular processing of the I-485 may continue.
If the foreign national timely responds to the Notice but does not establish evidence of a qualifying job offer, the adjudicating officer "may" immediately deny the I-485.
If the foreign national fails to respond or timely respond to the Notice, the adjudicating officer "may" immediately deny the I-485.
If approval of the Form I-140 is revoked or the Form I-140 is withdrawn before the I-485 has been pending for 180 days, the approved I-140 is no longer valid with respect to the new officer of employment and the I-485 may be denied. Prior BCIS guidance indicates that revocations are retroactive to the date that withdrawal was requested by the employer; therefore it is possible that, though a revocation may be effected by BCIS after 180 days have elapsed, it will be deemed to have occurred prior to the 180-day mark if the employer requested withdrawal before that time.
The offer of employment must be in good faith and the employer must have had the intent, at the time the I-140 was approved, to employ the beneficiary upon adjustment. The memo goes on to note that there is no requirement that the beneficiary of the I-140 actually be in employment until permanent residence is authorized and that it is possible for a foreign national to qualify for the provisions of Section 106(c) even if he or she had never been employed by the prior petitioning
