Doubtful @ I-140 portability? Let's do this..

[aws]

Folks,

Within the last 2-3 days, a lot of furor has been generated due to that recent article on I-140 portability. I bet different lawyers will have different opinion as that news has not yet appeared in form of an official CIS memo.

In such an uncertain state, why not enquire with the right authority, i.e., the CIS itself?
I did it myself y'day evening and after spending @ 30 min. on a phone call and talking to an immigration officer at CIS, this is what I found out:

1) After 6 months in pending, I140 withdrawal will have no bearing if the beneficiary is able to provide proof of similar occupation.
2) AC21 law can be used to change employment/employers in similar field as long as the new job is similar to that described in labor certification.
3) Also, she told the different lawyers have different way of interpretation of AC21, so one should always check with CIS!

Sounds good? , for me, it did.

I suggest the following:

1) Let atleast 5-10 of us take some time today and tomorrow and call USCIS and speak to an immigration officer. (do this atleast 2-3 times each person)
2) Clarify what is their latest info./stand on the AC21 as regard to I140 status
3) Consolidate all of our responses (atleast 15-20 nos.) and then see what is the majority in opinion.

I think it is worth the effort. If we do this, by end of 8/27, I think we will have nothing in dark.

Who is supporting me in this effort?

 

[askgc]

In writing?

Folks,

Within the last 2-3 days, a lot of furor has been generated due to that recent article on I-140 portability. I bet different lawyers will have different opinion as that news has not yet appeared in form of an official CIS memo.

In such an uncertain state, why not enquire with the right authority, i.e., the CIS itself?
I did it myself y'day evening and after spending @ 30 min. on a phone call and talking to an immigration officer at CIS, this is what I found out:

1) After 6 months in pending, I140 withdrawal will have no bearing if the beneficiary is able to provide proof of similar occupation.
2) AC21 law can be used to change employment/employers in similar field as long as the new job is similar to that described in labor certification.
3) Also, she told the different lawyers have different way of interpretation of AC21, so one should always check with CIS!

Sounds good? , for me, it did.

I suggest the following:

1) Let atleast 5-10 of us take some time today and tomorrow and call USCIS and speak to an immigration officer. (do this atleast 2-3 times each person)
2) Clarify what is their latest info./stand on the AC21 as regard to I140 status
3) Consolidate all of our responses (atleast 15-20 nos.) and then see what is the majority in opinion.

I think it is worth the effort. If we do this, by end of 8/27, I think we will have nothing in dark.

Who is supporting me in this effort?

I can support this effort, but How do we get something in writing?
Sending mail to Immigration.reply@dhc.gov or something?
By the way I am already approaching USCIS thru my congressman, they
said they will get in writing a reply to my letter which talks about removal
of releif under section 106 (j) by USCIS.

 

[chennai_boy_321]

Guys,

Also when talking to CIS or Attorney in case of 140 Port, ask about any future RFE also. Who will be responsible New Company or the Old Company on answering the RFE.

Chennai Boy.

 

[grunggy]

This was the summary of the meeting

This was a summary of the meeting
August 04, 2004 ... 8/4/04 - Summary of AILA-USCIS Issues from JULY 31, 2004 Board of Governors Meeting


140 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. There is NO OFFICIAL MEMO YET

For those of you familiar with Murthy Law firm this is the responce I got

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.

 

[candie]

Still conflict of message, from http://www.immigration-law.com/, no one sure

08/25/2004: USCIS Dilemma of I-140 Portability and Concurrent Filing/Concurrent Adjudication

People may recall the background of enactment of AC 21 legislation. The legacy INS was in a total mess and backlogs kept piling up, particularly I-485 and H-1B processing. When the law was enacted, the employment-based immigration proceedings were bifurcated and unless I-140 was approved, no one could file EB-485. The backlog the Congress was interested in was I-485 applications and I-140 petition proceeding backlog was not within the parameter of the legislative intent. This is clear from the reading of I-140 portabilty provision under AC 21 and not well publicized portion of the legislation which strongly recommended the legacy INS to adjudicate I-485 in 180 days. It was a recommendation and not a mandate. The I-140 portability legislation was assumedly enacted to pressure the legacy INS to reduce I-485 processing times to 180 days. Bush's proclaimed announcement of immigration benefits processing time to 180 days was not a coincidence.
The problem is that the agency conceived the idea of concurrent I-140/I-485 filing prior to the enactment of AC 21 and apparently by the time it was enacted as a regulation, the agency probably did not review seriously the impact of the concurrent filing to the I-140 portability provision in the AC 21 Act. Consequently, the agency had to deal with the difficult task of reconciling between the legislative provision that allows the I-485 filers to change employment after 180 days of filing and the same legislative provision that provided portability of I-140 petition and not I-485 application. If this conflict was created by the agency for oversight, there are only two remedies available for the agency to correct their mistakes. One is to introduce a legislation to amend the relevant provision of AC 21 or better yet the agency process the concurrently filed I-140 petitions within 180 days so that the I-140 can be ported after passage of 180 days of I-485 filing. We realize the predicament of the agency to accept the concept of I-140 portability when I-140 has yet to be adjudicated. When there is no approved I-140 petition, at least theoretically, there is no I-140 to be ported.
Unfortunately, the agency has been moving completely opposite direction when it announced concurrent adjudication of I-140/I-485. Since the announcement, the concurrently filed I-140 has been held hostage assumedly in order for the agency to adjudicate I-140 and I-485 concurrently. The backlog of I-485 is not something which the agency can achieve in the near future, not probably until September 30, 2006. We cannot tolerate the AC 21 legislation remained beaten and bruised so hard by the agency's failure to coordinate its action with the spirit and intent of the AC 21 legislation. It is not impossible task for the agency to correct its mistakes and reconcile the conflicts: Agengy should set a goal of adjudicating the concurrently filed I-140 petition within 180 days and adjudication of I-140 petition for the concurrently filed cases should not be held hostage to implement its concurrent adjudication of concurrently filed I-140 and I-485. The agency should never betray the legislative intent of a law, AC 21 in the instant situation, by blocking implementation of the legislative intent through a circumbent action to lay a road block to the I-140 portability and change of employement for the I-485 filers after 180 days.