I-140 Portability Under 106(c)

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dynobuoy

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Rajiv / Jim Mills : I-140 Portability Under 106(c)

Guys
This is a great new law if it is ever implemented. This will end all the pains of the concurrent filers. Have you seen any discussion on this topic?

According to this new rule... If a person's concurrently filed 140 and 485 has been pending for more than 180 days the beneficiary can change to a similar job. This also states that the denial / withdrawal of the 140 application in such cases will not affect the adjudication of the beneficiary's 485 applications.

Lets see if this law would ever get implemented (with crossed fingers and praying hands!).

I would appreciate if Rajiv / Jim Mills could shed some light on this.

dyno

If you are not aware please read this . http://www.jenkens.com/Image/Jenkens/Articles/Client%20Alert%20-%20Summary%20of%20AILA-USCIS%20Issues%20from%20July%2031%202….pdf
 
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Whoaaaaaa

If this thing gets implemented, then EB2s dont have to give a rat's ass for 140 approval..:) I hope that they implement this.
 
Also it will be interesting to know how they would treat substitute labor cases if this is implemented. For example, if they implement this, then the employer plays no role in the GC process once the labor is approved.

Guys throw some light on what might be the issue if they implement this!

thx
dyno
 
Section 106(c) was part of AC-21 act enacted in October 2000. Section 106(c) deals with issue of lengthy Adjudications and it states that an alien with pending immigration petition (in EB category) can change jobs and leave the sponsoring employer if:

a) Form I-485 has been filed and remains unadjudicated for 180 days or more, AND
b) The new job is in the same or similar occupational classification as job for which the I-140 was approved.

Looks like they are going to amend part (b) of AC21 section 106(c).

dynobuoy said:
Guys
This is a great new law if it is ever implemented. This will end all the pains of the concurrent filers. Have you seen any discussion on this topic?

According to this new rule... If a person's concurrently filed 140 and 485 has been pending for more than 180 days the beneficiary can change to a similar job. This also states that the denial / withdrawal of the 140 application in such cases will not affect the adjudication of the beneficiary's 485 applications.

Lets see if this law would ever get implemented (with crossed fingers and praying hands!).

I would appreciate if Rajiv / Jim Mills could shed some light on this.

dyno

If you are not aware please read this . http://www.jenkens.com/Image/Jenkens/Articles/Client%20Alert%20-%20Summary%20of%20AILA-USCIS%20Issues%20from%20July%2031%202….pdf
Click to expand...
 
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Guru's,

It mentions "CIS is now drafting a formal memo to this effect" .

How much time does it take for the CIS to Draft a Memo? Its nearly three weeks since the meeting took place, where the General Counsel of CIS has agreed with AILA Position on the Six Months Portability.

What is the procedure thenceforth:-

Does the Rule come into play immediately on issuance of the memo?

Regards.
 
AFAIK It might take anywhere between 1 - 6 months for it to be implemeted. But looking at the pace USCIS now introduces new procedures I will not be surpised if we could hear something as early as next month.

Lets keep up our hope.

dyno
 
106(c)

Hi Dyno,

According to 106(c), if I-140 is denied then u still can maintain the STATUS, what does this mean? I thought if 140 is denied then 485 will be denied as well?

Let us take a scenario of, 140 denied but 485 is pending, according to 106(c), re-file 140, get 140 approved, then continue with the old 485?

correct me if I am wrong
 
prgc said:
Hi Dyno,

According to 106(c), if I-140 is denied then u still can maintain the STATUS, what does this mean? I thought if 140 is denied then 485 will be denied as well?

prgc

You are correct as per the current rule. But if the new procedure is implemented, then the underlying 140 would have no effect on your GC process once you complete 6 months since the notice date. This is assuming that when you change job you switch to a similar occupation.


Let us take a scenario of, 140 denied but 485 is pending, according to 106(c), re-file 140, get 140 approved, then continue with the old 485?

Currently this has been discussed only in the AILA-USCIS meeting (based on the link in the first post). This has not been implemented yet. It is just a speculation at this time that a new 140 has to re-filed. Maybe that after 180 days the USCIS doesn't care about the underlying 140.

Well in that case we have several questions that needs to be cleared before we get another unclear memo from USCIS similar to the Fujie Ohata Memo.

My intention in starting this thread is tio list all these kind of issues and submit it to Rajiv so that he would try to address each of the items in the next AILA meeting.

hth
dyno


correct me if I am wrong
Click to expand...
 
dynobuoy said:
Maybe that after 180 days the USCIS doesn't care about the underlying 140.
Click to expand...

This is what my current company (not the sponsoring company) law firm told me few months back, when I changed my employer.

They also told me that in employment based Greencard processing, what USCIS care is that whether the applicant is working or not.

Just wanted to share my views.

naanshi
 
naanshi said:
This is what my current company (not the sponsoring company) law firm told me few months back, when I changed my employer.

They also told me that in employment based Greencard processing, what USCIS care is that whether the applicant is working or not.

Just wanted to share my views.

naanshi
Click to expand...
So did you change your job after 140 approval or before??
 
That is great news. Apart from clearing the clouds around the infamous Fujie Ohata Memo, it would help us if Rajiv can address these concerns to Fujie and get a favorable answer.

Also Rajiv could ask if there is any way to know if our application is chosen for concurrent adjudication. Beneficiaries are getting crazy over the uncertainity of their pending applications.

thx
dyno
 
Ac21 and portability from Murthy LAw Office

AC21 and portability from Murthy Law Office

--------------------------------------------------------------------------------

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
 
grunggy said:
AC21 and portability from Murthy Law Office
Click to expand...

This is exactly what will happen. Every other attorney would give their own interpretation about this portability issue. Thats is why we need to hear it from the horse's mouth, the incredible Fujie Ohata. At the least, we could be assured that USCIS is considering such a memo will be a welcome change.

Again looking at the pace at which CIS is implementing new procedures, my gut says that we should hear very soon on this. Because once this is implemented the number of referrals to the CIS would decrease drastically and also 140 RFE and responses would considerably reduce the load on the service centers.

Considering all this lets hope for the best and wait till we hear back from Fujie.

cheers
dyno
 
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unitednations said:
We could have an answer by the end of the week.

rajiv is deposing Fuji Ohato on thursday.
Click to expand...


Hi Unitednations,

Any Info on the Court Proceedings on Thursday , more specifically what FO had to say regarding the various procedures planned?

Regards.
 
vicky007 said:
Hi Unitednations,

Any Info on the Court Proceedings on Thursday , more specifically what FO had to say regarding the various procedures planned?

Regards.
Click to expand...
Thanks Vicky for reminding! UN any updates?

thx
dyno
 
naanshi,

Any updates in your case ?

I got my Fp done in 09/01/04.
Also does the salary mentioned in LC should match the salary in the new job ?

What if the new salary is lesser than old salary by 8k ?

Will there be a problem ?

Your advice is appreciated .

Thanks
 
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