I-140 Portability and New Employer's Obligation
This might be of some help,
By now, everyone knows that under AC21, the EB-485 applicant may change employer once 180 days pass after filing of EB-485, provided that the new offer of employment is in similar or same occupational classification and the I-140 petition has been approved. Since I-140 is portable after passage of 180 days after filing of I-485 only if there is an offer of similar or same employment by a new employer, such EB-485 has to prove existence of such offer of new employment at some point. This raises two questions to such EB-485 applicants: One is the timing of filing of such proof to the agency, and the other is the nature of the letter which the new employer must provide for the purpose of I-140 portability. Apparently, the answers to these two questions must be drawn from the William Yates Memorandum of August 2003 on continuing validity of I-140 petition under AC 21.
Timing of Filing of the Change of Employer Proof After 180 Days:
If the new employer letter is filed proactively, the USCIS will continue to adjudicate the EB-485 application.
If the new employer letter has not been filed and USCIS receives a letter of withdrawal or request for revocation of I-140 petition by the original employer, USCIS is not supposed to deny the EB-485 application until a prerequisite step is taken. The prerequisite step is serving a Notice of Intent to Deny. If the EB-485 aplicant fails to respond to such notice or fails to prove that he/she had an offer of new employment and it is a similar or same occupational classification, then USCIS is supposed to deny the pending EB-485 application.
If the new employer letter has not been filed and the original employer did not revoke or withdraw the I-140 petition but EB-485 applicant receives a RFE to prove continuing existence of the I-140 petition employment, USCIS may continue adjudication of EB-485 once USCIS receives a proof of new employment offer. USCIS has been exercising discretion to continue adjudication of such EB-485.
What Needs to be Proven by the New Employer:
The USCIS Memorandum states that it is not the actual job one has to prove. It is the "offer" of employment by the new employer. Accordingly, the Memorandum continues to stipulate that the I-140 can be portable and remain valid in certain conext without actual job being taken with the new employer before approval of the pending EB-485 application. It states that legally the statute or regulation does not require the alien to take the I-140 petition employment until the pending I-485 application is approved. Obviously I-140 employment is a "permanent" employment as distinguished from a temporary job and a nonimmigrant is unable to take such job until the permanent resident application is approved. Accordingly, it appears that it is the new employer's "offer" of employment and "intent" to employ the EB-485 applicant upon approval of EB-485. It thus appears that the offer of "temporary" employment may not square with the interpretation of this part of AC 21 by the USCIS. It has to be an offer of employment "for the period of indefinite duration" and the new employer may have to make a commitment to hire the alien for the permanent employment once I-485 is approved. However, it is this reporter's opinion that it may not mandate to stay with one new employer. The I-485 applicant may be able to change from the first new employer to the second employer "inasmuch as he/she can prove" that each of these employers offered not a temporary employment but permanent employment. Even under the AC 21 portability of I-140, it is the opinion of this reporter that the offer of "permanent employement" should continue to exist either through one new employer or subsequent new employers until EB-485 is finally adjudicated. I-140 portability requires "offer of new employment."
Source: immigration-law.com
