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Dear Attorney Palacios,The immigrant petition filed by my employer my adjustment of status application has been pending already for almost a year. Can I now legally transfer to another employer? If yes, could you explain to me how?
Lorna
Section 106(c) of the American Competitiveness Act of the 21st Century, more popularly known as AC21, provides that the approval of a Form I-140 employment-based immigrant petition shall remain valid when an alien changes jobs or employers, if:
a. Form I-485, Application to Adjust Status, on the basis of the employment-based immigrant petition, has been filed and remained un-adjudicated for 180 days or more; and
b. The new job is in the same or similar occupational classification as the job for which the petition was filed.
Please note, however, that according to the May 30, 2008 Memorandum issued by Donald Neufeld, Acting Associate Director for Domestic Operations of the U.S. Citizenship and Immigration Services (USCIS), in order to effectively transfer your employment to another employer under the portability provisions of AC21, the immigrant petition filed in your behalf must have been legally approvable at the time of filing and must eventually be approved by the USCIS. We quote:
“On October 18, 2005, USCIS designated Matter of Al Wazzan, A95 253 422 (Jan. 12, 2005) as a USCIS Adopted Decision. This AAO decision established that a petition that is deniable (i.e., not approvable), whether or not the petition is denied 180 days or more after the filing of the adjustment of status application, cannot serve as the basis for approval of adjustment of status to permanent residence under the portability provision of INA § 204(j). An un-adjudicated Form I-140 petition is not made valid merely through the act of filing the petition with USCIS or through the passage of 180 days. Rather, the petition must have been filed on behalf of an alien who was entitled to the employment-based classification at the time that the petition was filed, and therefore must be approved prior to a favorable determination of a §106(c) AC21 portability request.” (Emphasis Supplied)
More importantly, please note that while AC21 does not clearly specify what has to be filed, if any, in order to avail of the benefits of its portability provisions, the policy memos issued by the USCIS regarding this issue constantly make reference to an expectation that the USCIS be notified or that a portability request be filed.
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