USCIS Reverses Policy on I-140 Portability After EB-485 Pending 180 Days
gc4now said:
Hi All,
My I-140 and 485 have been in pending for more than 180 days and there is an RFE on I-140 which is not answered yet. Now I am about to lose the job and my employer will withdraw 140 immediately. could you please help me how to use AC-21 in this situation.
How can I answer RFE if I change employer now?
Should I file AC-21 first and and request USCIS about RFE details. My employer did not give RFE details it is almost one month old and he is not willing to answer. I called USCIS but they are not giving details of RFE.
I need help please advise me how to answer RFE my self or thru another attorney or employer?
Regards,
GC4NOW
Please read the below text very carefully as this has been posted in immigation-law web site as well. This is a very recent YATES memo of 12th May.
Summarizing the context, you should convince your employer to answer that RFE, which is likely to be an ability to pay issue. Show them some ravenousness that you will pay them few extra thousand dollars. If you can do this, once your RFE is sent out, more likely your implore will get approved in weeks if not in days.
1) AILA has reported a new USCIS Memorandum of May 12, 2005 on AC 21 issues which have either been answered or unanswered. In the answered issues, the USCIS is amending its policies. One of these key issues which it reverses by this new memorandum is I-140 portability after 180 days of filing of EB-485 applications.
2) When the alien beneficiary changes employment before I-140 petition is approved but I-485 application has been pending 180 days or longer, the USCIS field offices have been instructed not to automatically deny such I-140 petition and I-485 applications unless they first take the following steps:
i) First determine whether the preponderance of the evidence establishes that the I-140 petition is approvable or would have been approvable, had it been adjudicated within 180 days.
ii) If the I-140 petition is approvable but for an ability to pay or any other issues relating to a time after the filing of the petition, the USCIS should approve the I-140 petition on its merits.
iii) The adjudicator should determine whether the new employment is "same or similar" occupational classification.
iv) If the answer is yes, the adjudicator should approve EB-485 applications.
3) In taking the foregoing steps, should the adjudicator has an issue of RFE, particularly the issue of employer's ability to pay the proffered salay, the adjudicator should issue RFE, and upon receiving the RFE responses, if the evidence meets the approvable thresholds, the adjudicator should perform the foregoing procedure and conclude the adjudication of I-140 petition and I-485 application.
4) In the context of RFE,
if the response is not received or even if the response is received and the reponse does not adequately address the issues or the response is simply that
the beneficiary no longer works for the petitioner, the petition is considered
unapprovable and consequently
the I-140 will be denied and at the same time,
I-485 will also be denied.