You can “port” to a new job after I-485 RD > 180 days regardless of I-140 status

K

kvpt_mm

Registered Users (C)
140 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 apetitioner 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.

see following link and scroll to page 2 ; section 5

http://www.jenkens.com/Image/Jenken...mary of AILA-USCIS Issues from July 31 2….pdf
 
kvpt_mm said:
The subsequent withdrawal of the I-140 by apetitioner 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.
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Until I see a formal memorandum from USCIS on this, there's no way I would make this assumption. This turns EB immigration law on its head, and that wasn't the intent of Congress.

If USCIS wants to make this claim as well, good for them. If not, I don't see how someone could challenge the law with this claim and win.
 
As per my discussion with attorney they may stop withdrawing the I-140 after six months pending I-485. But denial for any reasons would result in end of I-485.
 
tammy2 said:
As per my discussion with attorney they may stop withdrawing the I-140 after six months pending I-485. But denial for any reasons would result in end of I-485.
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Question - is the first sentence assuming an approved I-140? My guess is yes.

Look, immigration in any category EB or FB needs an approved immigrant visa petition. There's no classification that does not require this, either via an I-130, I-140 or I-360. This development would assume that one could get an immigrant visa without ever having successfully petitioned for one. That's absurd.
 
http://www.immigration-law.com

08/25/2004: USCIS Dilemma of I-140 Portability and Concurrent Filing/Concurrent Adjudication

People may recall the background of enactment of AC 21 legislation. The legacy INS was in a total mess and backlogs kept piling up, particularly I-485 and H-1B processing. When the law was enacted, the employment-based immigration proceedings were bifurcated and unless I-140 was approved, no one could file EB-485. The backlog the Congress was interested in was I-485 applications and I-140 petition proceeding backlog was not within the parameter of the legislative intent. This is clear from the reading of I-140 portabilty provision under AC 21 and not well publicized portion of the legislation which strongly recommended the legacy INS to adjudicate I-485 in 180 days. It was a recommendation and not a mandate. The I-140 portability legislation was assumedly enacted to pressure the legacy INS to reduce I-485 processing times to 180 days. Bush's proclaimed announcement of immigration benefits processing time to 180 days was not a coincidence.
The problem is that the agency conceived the idea of concurrent I-140/I-485 filing prior to the enactment of AC 21 and apparently by the time it was enacted as a regulation, the agency probably did not review seriously the impact of the concurrent filing to the I-140 portability provision in the AC 21 Act. Consequently, the agency had to deal with the difficult task of reconciling between the legislative provision that allows the I-485 filers to change employment after 180 days of filing and the same legislative provision that provided portability of I-140 petition and not I-485 application. If this conflict was created by the agency for oversight, there are only two remedies available for the agency to correct their mistakes. One is to introduce a legislation to amend the relevant provision of AC 21 or better yet the agency process the concurrently filed I-140 petitions within 180 days so that the I-140 can be ported after passage of 180 days of I-485 filing. We realize the predicament of the agency to accept the concept of I-140 portability when I-140 has yet to be adjudicated. When there is no approved I-140 petition, at least theoretically, there is no I-140 to be ported.
Unfortunately, the agency has been moving completely opposite direction when it announced concurrent adjudication of I-140/I-485. Since the announcement, the concurrently filed I-140 has been held hostage assumedly in order for the agency to adjudicate I-140 and I-485 concurrently. The backlog of I-485 is not something which the agency can achieve in the near future, not probably until September 30, 2006. We cannot tolerate the AC 21 legislation remained beaten and bruised so hard by the agency's failure to coordinate its action with the spirit and intent of the AC 21 legislation. It is not impossible task for the agency to correct its mistakes and reconcile the conflicts: Agengy should set a goal of adjudicating the concurrently filed I-140 petition within 180 days and adjudication of I-140 petition for the concurrently filed cases should not be held hostage to implement its concurrent adjudication of concurrently filed I-140 and I-485. The agency should never betray the legislative intent of a law, AC 21 in the instant situation, by blocking implementation of the legislative intent through a circumbent action to lay a road block to the I-140 portability and change of employement for the I-485 filers after 180 days.
 
They can eliminate even more problem by eliminating the whole green card processing. :D :D
 
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Congress would need to do that and it is very unlikely. However, USCIS created the procedure for concurrent filing and therefore could eliminate it with the issuance of a memorandum.
 
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