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FAQ: I-140 portability

Discussion in 'I-140 job portability' started by Ron Gotcher, Mar 24, 2008.

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  1. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Frequently Asked Questions about I-140 portability

    Q. When can I port to a new employer?
    A: After your adjustment of status application has been pending for more than 180 days, you become eligible to change jobs with the same employer or move to a new employer.

    Q: Are there any restrictions other than having to wait 180 days?
    A: Yes, the new job must be in the “same or similar occupational classification”.

    Q: What does that mean?
    A: That term has not been defined by the INS/CIS since the law was signed by then-President Clinton. Most believe that Congress was referring to the Department of Labor’s occupational classification system. If so, then this has to be read very broadly.

    Q: Do I have to wait until my I-140 has been approved?
    A: No, but if you don’t, and the CIS issues a request for evidence that your employer doesn’t want to deal with, the petition could be denied. If there is no chance of an RFE, or if your original employer agrees to help you, then there is no problem leaving before the I-140 is approved.

    Q: Can my old employer revoke my approved I-140?
    A: The CIS says that after your adjustment application has been on file for 180 days, the employer loses all right to withdraw or revoke an I-140.

    Q: Do I have to worry about making sure that my new job meets or exceeds the prevailing wage?
    A: No, prevailing wage is not an issue.

    Q: Does my new employer have to prove that they had the ability to pay the prevailing wage since the PERM was filed?
    A: No, ability to pay the prevailing wage is not an issue.

    Q: Do I have to remain in the same geographic area?
    A: No, you may work anywhere in the US. Geography is not an issue.

    Q: Do I have to notify the CIS that I have changed employers?
    A: No, there is no legal requirement that you do so. Indeed, doing so will likely result in the processing of your case being delayed. If the CIS asks you if you have changed jobs, you must respond fully and truthfully, but you do not have to volunteer any information.

    Q: What happens if I get laid off and can’t find a new job?
    A: You are not required to work at all times while your AOS is pending. You are required to have a good faith offer of employment at the time your adjustment of status is granted and you must intend, in good faith to accept it.

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