I-140 Amendment and portability

jok_07089

New Member
My I-140 was approved in 2005. In 2006 my company was acquired by another company. The new company filed I-485 on August, 2007. In August, 2009 I received RFE and my new company filed I-140 Amendment petition, which is pending now. My H1B will be expired in April, 2010. The question is - can I apply for EAD if my amendment I-140 is pending or I need to extend my H1B. The second question is - am I portable if my I-485 is pending more than 180 day, but amendment I-140 is pending too? I just want to move to another office with the same company but in the different geographical aria.
 
You can get an EAD if your I-485 is pending. Doesn't matter if your I-140 is pending or approved.

AC21 portability is another matter. To safely use AC21 you need an approved petition. But before you filed the I-485, your I-140 was "damaged" by the acquisition, and would require an amendment to set it right again. So effectively the I-140 was not exactly in good order when you filed the I-485, nor at 180 days after filing the I-485. If your I-485 was filed in 2005, and then the acquisition happened more than 180 days later, you would have been free and clear for sure under AC21. But in your situation I'm not so sure if you're safe while this I-140 amendment is pending.

However, you only want to change positions within the same company. Which means they presumably are not going to revoke your I-140. So you'll be fine, assuming you're moving to a "same or similar" position and the company doesn't revoke your I-140 while it's pending and the amendment ultimately gets approved.
 
Jackolantern, thank you for your replay.

I would like to clarify my question:

I am going to stay in the same department and on the same position, but just move to another office in another state and work remotely in the same team. My company is not going to revoke my I-140 petition, but I have to inform INS about change of address. Can this cause any issues or slow down the process anyhow? When I wanted to do that right after they filed I-485 (2 years ago), the lawyer said that I had to wait for 180 days, but at that time I-140 had been approved and he did not know that they would send RFE and request I-140 amendment. Please, advise.
 
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