Yes you can take the new job offer. Job is same or similar, I-140 approved, GC pending 180 days, NO PROBLEM. You can use AC21. Also if your employer now tries to revoke your I-140 it's too late. They lose control over it in your scenario.
BCIS Memo on I-485 Portability After I-140 Revocation
Posted Aug 12, 2003
Purpose of this Memo
The purpose of the August 4, 2003 Memo is to provide policy guidance to Service Center Directors, BCIS Regional Directors and BCIS field offices in processing I-485s in those cases where the beneficiary of an approved I-140 petition changes employers under AC21.
New Job Must Be "Same or Similar"
The Memo states that if the I-140 petition has been approved and the I-485 applicant takes a new job in a "same or similar" position after the I-485 application has been pending 180 days or longer, then the underlying I-140 petition remains valid under AC21. In a footnote, BCIS mentions that the underlying Labor Certification also remains valid if the same conditions are satisfied.
Revocation or Withdrawal of the I-140 Petition
The Memo provides that the approved I-140 petition remains valid even if the original sponsoring employer requests its revocation, as long as the I-485 application has been pending at least 180 days at the time of the revocation or withdrawal.
Evidence of New Job Must Be Submitted to BCIS
In cases where the I-140 is revoked, the Memo states that it is "expected" that the foreign national will have submitted evidence of qualifying new employment which is the "same or similar" to the position as with the original sponsoring employer. If that evidence has been submitted, the adjudicating officer may simply adjudicate the case as though the approved I-140 petition had never been withdrawn.
If the I-485 applicant has not yet submitted evidence of a new job offer when the I-140 petition is revoked or withdrawn, the adjudicating officer is directed to issue a Notice of Intent to Deny (NOID). The disadvantages of a NOID have been discussed under, "Analysis and Conclusion," below.
If the applicant responds to the NOID with proof of a new "same or similar" job within the time allotted on the NOID, the case may be favorably adjudicated, notwithstanding the revocation of the I-140 petition. If, however, the applicant is unable to provide evidence of a qualifying new AC21 employer showing that the new position is indeed a "same or similar" job, the I-485 application may be immediately denied.
