August 04, 2004 ... 8/4/04 - Summary of AILA-USCIS Issues from JULY 31, 2004 Board of Governors Meeting
I40 Portability Under 106(c)
AILA has taken the position that the statute merely requires an I-140 and an I-485 to be pending for 180 days in order for a beneficiary to be "portable" with regard to a change of employers or a
change of jobs with the same employer to a same or similar occupation. Previous memos issued by CIS had inferred that an I-140 must be approved and that the I-485 must then be pending for 180 days before portability attaches. The new General Counsel of the CIS, former AILA member,
Robert Devine, and William Yates appear to have agreed with AILA that an I-485 beneficiary may "port" to a new employer or position if the I-485 has been pending for 180 days, regardless of whether or not the I-140 has been approved. The subsequent withdrawal of the I-140 by a petitioner or denial of the I-140 petition by the Service Center would have no impact on the
beneficiary's status in the U.S. CIS is now drafting a formal memo to this effect.
Thank you for your eMail. This is an issue that AILA has been working on for quite some time. While there have been discussions and agreements in principle, there is nothing official in writing at this time. It is always uncertain the amount of time that it will take to obtain a memo with a changed policy. Sometimes, the memos appear quite quickly while, in other situations, you will have oral statements by the government but no memo for a year or more. At this time, while this is a generally favorable sign, there can be no action that should be taken in reliance upon these discussions. The previous memo requiring the approval of the I-140 is still the policy.
If there are any official announcements on this matter or a new memo, we would include it in our weekly MurthyBulletin.
Dana J. Delott*
Attorney at Law
The Law Office of Sheela Murthy, P.C.
Dictated by Attorney and transcribed.
