Memphis immigration lawyer Ari Sauer provides news and information on US immigration law.
QUESTION: My company filed an I-140 immigrant petition for me which was approved in 2008. My I-485 application for adjustment of status was filed in 2007. In 2007 my company was purchased by another company, so a new I-140 petition was filed to reflect the new ownership. I am still in the same position as before the company was purchased. The new I-140 petition has not been approved yet.
I now have an offer of employment with a different company and I want to know if I can port my I-140/I-485 application over to the new employer now, or do I have to wait for the new I-140 to be approved?
Also, when I move to the new employer should I send USCIS a letter telling them that I am porting my I-485 application? I am afraid that if I don’t they will send a Request for Evidence (RFE) for my I-485 application to my old employer?
ANSWER: The American Competitiveness in the Twenty-First Century Act (AC21) created the ability to “port” your I-485 application for adjustment of status (green card application) to a new employer where: 1) the I-485 has been pending for more than 180 days; 2) the I-140 employment-based immigrant petition has been approved or was approvable as of the day that your I-485 had been pending for 180 days; and 3) you will be working in the same or similar occupational classification.
You should be eligible to port now without waiting for the new petition to be approved. You have an approved I-140 petition. Your I-485 application has been pending for more than 180 days. As long as your position with your new employer is the same or similar to your position with your old employer, then you meet all the requirements for porting your I-140 petition and I-485 application to your new employer. I would suggest that you meet with a qualified immigration law attorney before you switch employers to get their opinion of whether the new position is the same or similar to the old position.
As to your second question, there is no requirement to notify USCIS that you are porting. If USCIS sends you an RFE on the I-485 then you would notify them that you are now with a new employer and show that the new position is the same or similar to the old position. That being said, in a situation where the I-140 petition has already been approved, I see no harm in sending USCIS notice that you have ported to a new employer. I would not suggest sending notice to USCIS where the I-140 petition has not been approved, as it may result in an RFE for the I-140 petition being sent to your old employer.
You should know however, that sending USCIS notice that you have changed employers will not result in them sending future notices to your new employer. The I-485 application is filed by you, the beneficiary. Any correspondence from USCIS regarding the I-485 application should be sent to you at the address you provided on the form. A copy of all correspondence should also go to your attorney, if you had one file your application for you. An RFE for the I-485 application should not go to your employer unless you gave your employer’s address as your mailing address on the I-485 form. If you change your address, you can inform USCIS of your new address by calling the National Customer Service Center at 1-800-375-5283 (the number is listed on your receipt notice) and filing a Form AR-11 Change of Address, which is an on-line form located on the USCIS website. You must do both to ensure that USCIS actually changes your address in their system.