Answer at immigration-law.com
Q-35 (01-04-2006): I work for a consultant company and my client is one of the fortune 500 companies. The client is willing to take me as their employer and my consulting company is also willing to let me go. I have to invoke AC21 and use EAD to do so. My I-140 is approved and my I-485 is pending since April 2004. Lately I am seeing a lot of denials of similar cases once the original employer withdraws the I-140 even though the I-140 was approved and I-485 pending more that 180 days. What is my risk? A-35: People usually rely on the website immigration discussion boards to obtain some immigration information. However, these reports can be very misleading as each case is so different when it comes to the specific circumstances. I can only tell you what the law is and what the USCIS policy is. AC-21 allows the I-485 waiters to change employment after 180 days of I-485 filing to a same or similar occupational classification. We call this I-140 portability. Once the alien reaches this stage and I-140 has already been granted, the alien is "eligible' for the porting and any withdrawal or revocation of the I-140 petition by the former employer should not affect the pending I-485 application. However, there can be many different circumstances involved. For instance, some people changed employment after 180 days of I-485 filing during the pendency of I-140 petition. Other situation is people changed employment after 180days of I-485 filing and after approval of I-140 petition, and they even proactively reported the change of employment. Again, another situation is people changed employment ater 180 days of I-485 filing and approval of I-140 petition, but they have yet to file a report of the change of employment. In none of these cases, the USCIS should have denied the I-485 applications unless the USCIS first takes certain action. In the first case, the USCIS should have served a notice of intent to deny stating that unless the USCIS is provided sufficient evidence that at the time of I-140 petition filing, there was no flaw with the petition and the petition was approvable, the I-485 will be denied. Inasmuch as such evidence is provided, the USCIS is not allowed to deny I-485 application. In the second case, the USCIS has evidence on file that the alien ported and cannot deny I-485 even if they receives the revocation of the I-140 petition by the former employer. The third case faces somewhat challenging questions. Since the alien did not report the change of employment, the USCIS has no record of his/her AC-21 porting and when they receive the I-140 withdrawal and revocation request by the former employer, the USCIS will have to revoke the approved I-140 petition. In such situation, the USCIS usually serves the Notice to Deny I-485 Application for Revocation of I-140 petition, giving some time for the I-485 waiters to respond to the notice. Sometimes, however, the USCIS just flatly deny the I-485 application as they were not aware that the alien had ported using AC-21. The situation becomes more complicated if the old employer substitutes the alien beneficiary who then obtains the approval of I-485 application. Since one labor certification cannot create two green cards, the USCIS will have to either revoke the substituted alien's green card approval or permanently deny the ported alien's I-485 application. This remains a grey area in the AC-21 portability practice of USCIS. We have thus recommended people that considering the retrogression and protracted I-485 proceedings, people may proactively file report of AC-21 porting with the USCIS so that the aforementioned confusion be avoided within the USCIS. I-485 waiters will also have to go through a nightmare of filing motion to reopen or motion to reconsider or even an appeal in the federal courts once they receive such denials of I-485 applications. In your case, should you decide to port to the fortune 500 client company, you may want to report the change of employment early on so that even if the old employer will revoke the I-140 petition, the USCIS will have the evidence of portability and will not deny your I-485 application.
