Memphis immigration lawyer Ari Sauer provides news and information on US immigration law.
QUESTION: My company filed an I-140 immigrant petition in the EB3 category for me which was approved several years ago. 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 by the new owner. 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 move my I-140 petition and I-485 application over to the new employer under the AC21 law, 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 moving 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?
THE IMMIGRATION ANSWER MAN – ARI SAUER: 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 a Request for Evidence (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. You should consult with an immigration lawyer about the pros and cons of sending notice to USCIS where the I-140 petition has not been approved.
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 and they submitted a Form G-28 Notice of Appearance as Attorney This is one of the added benefits of using an attorney. 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. If an RFE is issued on an I-140 that is still pending, the RFE will still go to your old employer even if you send in notice that you have moved to a new employer.
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* This is an advertisement. Ari Sauer is an attorney with the Siskind Susser law firm. http://www.visalaw.com/ari.html. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of New York and New Jersey. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.