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I-140 And I-485 Filed Simultaneously

Discussion in 'AC 21 I-140 Portability' started by SWE, Dec 9, 2014.

  1. SWE

    SWE New Member

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    First, thanks for taking the time to answer all these questions.

    My question is:

    If an I-140 and I-485 were filed simultaneously, and 180+ days have passed, and both are still pending, can the employee switch companies (keeping the same/similar occupational classification) without re-starting the application process, or does the I-140 need to be approved before switching companies?

    Thanks!
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    The USCIS published a precedent decision holding that the I-140 must be approved for portability to attach. Personally, I think that their interpretation is wrong and vulnerable to judicial challenge.
     
  3. SWE

    SWE New Member

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    Thanks for the info! What you are doing here is great. Most attorneys are unwilling to say just about anything in a public forum. You are really helping the legal immigrant community here; it's really appreciated.
     
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I have to walk a fine line between advising on cases with unique facts and circumstances, and offering thoughts on issues of general applicability. Ideally, this forum allows people to dismiss crazy rumors that they have heard, or irrational fears, while making it clear when they need to seek expert counsel.
     
  5. SWE

    SWE New Member

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    I have a related question, about intent to work for the sponsoring company. In particular, when exactly does this intent need to exist?

    For example, suppose that an employee works for an employer for several years (on H1B status). Eventually a PERM is filed and approved. AP, EAD, I-140 (EB2) and I-485 are all filed concurrently at time T. At this time T, the employee still intends to keep working for the employer.

    At T+4 months, the employee has received the AP/EAD combo card, but the I-140 and I-485 are still pending. At this point the employee starts to not like the employer so much and starts to think that the grass may be greener on the other side. The employee starts to actively look for another job (sending out resumes, talking to recruiters, etc). At T+180 days the I-140 is approved but the I-485 is still pending. At this point, can the employee safely accept a job (doing the same thing) from another company, with no intent to ever go back to the sponsoring employer?

    Is it ok that, at T+4 months onward, the employee had no intent to continue to work for the sponsoring employee? Is it enough that the intent existed at the point that the application was filed? Or does that intent need to exist right up until the T+180 day point?
     
  6. Ron Gotcher

    Ron Gotcher Attorney at Law

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    As a practical matter, the USCIS doesn't look too closely at cases where people leave their sponsoring employers six or more months after filing for AOS. In theory, they can insist that the applicant prove that BOTH the applicant and the employer fully intended to work together for at least six months following the filing of the I-485.
     
  7. SWE

    SWE New Member

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  8. Ron Gotcher

    Ron Gotcher Attorney at Law

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    In the remote event they do look closely into the intent issue, sending resumes prior to six months will be a red flag. Think of it in the same light as a prospective student who starts applying to schools a week after arriving as a visitor, but waits two months to apply for change of status to F1.
     
  9. SWE

    SWE New Member

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    Yes, I understand that -- that's why I asked. Thank you! You've been extremely helpful, as always.
     

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