Asian Journal- The Filipino-American Community Newspaper

With the current unavailability of EB-3 visas until October 2008 and the slow processing of applications for adjustment of status (Form I-485), those with pending Form I-485 are faced with seemingly endless waiting for their green cards.  This is problematic especially for those whose petitioning employers have shut down their businesses or at the brink of doing so due to the present economic situation.  Fortunately, with the portability of employment-based immigrant petition (Form I-140), those with approved Form I-140 can avail of the opportunity to change to a new employment provided certain requirements are met.
    
Under Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), the approval of a Form I-140 petition shall remain valid when an alien changes jobs or employers if: (1) the Form I-485 has been pending for at least 180 days; and (2) the new job is in the same or similar occupational classification as the job for which the Form I-140 petition was filed.  Under current regulations, the Form I-140 must have been approved before a favorable determination of a portability request can be made.

In filing a request for Form I-140 portability, the alien is expected to submit evidence that the new offer of employment is in the same or similar occupational classification as the offer of employment for which the Form I-140 petition was filed.  The USCIS adjudicators consider the following factors in determining whether the two employments are same or similar: (1) job descriptions; (2) Dictionary of Occupational Title and/or Standard Occupational Classification code assigned to the Form I-140 job offer and that which may be appropriate for the new position; and (3) substantial discrepancy between the Form I-140 wage and the wage offered for the new position.

An alien availing of the Form I-140 portability benefit is not required by law to notify the USCIS.  However, under certain circumstances, it would be prudent to do so.  Under USCIS rules, if the approved Form I-140 is revoked or withdrawn by the employer after the Form I-485 has been pending for at least 180 days, and the alien has not submitted evidence of a new qualifying offer of employment, the adjudicating officer is required to issue a Notice of Intent to Deny the pending Form I-485.  If the alien fails to respond or fails to establish that the new offer of employment is in the same or similar occupation, the adjudicating officer may immediately deny the Form I-485.  
    
The successor employer is not required to apply for a new labor certification or file a new Form I-140 to enable the alien to port to the new employment.  It is also not necessary that the new employment be in the same geographic area as the Form I-140 position.  The new employment may be in a different county or state, as long as it is for same or similar occupational classification.  Further, the new employment need not comply with the prevailing wage set in the underlying labor certification and Form I-140 petition.  However, a substantial discrepancy in the wage rates may be considered for purposes of determining whether the two positions are same or similar.  

If you have any questions regarding Form I-140 portability, we at Bander Law Firm are happy to assist you.  Our firm has multilingual staff who can communicate effectively in Tagalog, Spanish, and Mandarin.  Please feel free to call Bander Law Firm at 213-873-4333 to schedule your free initial consultation.  To learn more about immigration concerns and read Atty. Bander’s previous articles, visit  www.BanderLaw.com.  

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