Visa Number Backlog and I-140 Portability
* The USCIS Memorandum of May 12, 2005 stipulates that the 180-day of I-485 filing will continue to run even during the period of visa number unavailability for him/her and the alien may change employment during the period of visa number unavailability inasmuch as the I-140 portability is satisfied and EB-485 is pending.
Definition of "Same or Similar" Occupation Classification for I-140 Porting
* The USCIS Memorandum of May 12, 2005 clarifies that the "same or similar" will be determined on the basis of DOT or OES Codes. Accordingly, the new job must fall under the same DOT or OES with the labor certification job.
* The same rule will apply to the labor certification waived I-140/EB-485 cases. They will use the DOL's DOT or OES Codes to determine this requirement.
* Inasmuch as this requirement is met, the aliens in EB-1 cases like Multinational Corporate Executive/Manager petitions can port after 180 day of EB-485 filing taking a same or similar job with another employer.
* Alien can take new employment anywhere in the U.S. inasmuch as the new job falls under the same or similar occupational classification standards
USCIS Reverses Policy on I-140 Portability After EB-485 Pending 180 Days
* 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.
* 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:
* 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.
* 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.
* The adjudicator should determine whether the new employment is "same or similar" occupational classification.
* If the answer is yes, the adjudicator should approve EB-485 applications.
* 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.
* 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.
source: immigration-law
creates a new sticky post or take my post to organize these litigation.