Petition for a worker to become a lawful permanent resident in the United States. The Shihab Burke LLC Immigration Lawyers are here for your immigration needs. With offices in Columbus, Ohio, service areas in Troy, Michigan, and serving clients internationally, our immigration attorneys will work tirelessly to process your cases. Form I-140, Labor Certification, EB-1, National Interest Waivers, EB-5, all part of our Employment Based Immigration services.
Before a foreign national in the employment-based green card, or permanent residency, EB-2 or EB-3 category can apply for consular processing of an immigrant visa or adjust status, they must have an approved I-140 Immigrant Petition. The I-140 Immigrant Petition can be filed once the labor certification, if required, has been approved.
Whether you’re a foreign professional or a U.S. employer looking to hire foreign workers, dealing with U.S. immigration law can be a daunting task. Our well-rounded and skilled attorneys at Shihab Burke LLC Immigration Lawyers will represent you and help you take the best legal paths, according to your particular situation.
With offices in Columbus, Ohio, service areas in Troy, Michigan, and serving the rest of the world, our immigration lawyers will tend to your Form I-140 with years of experience. The team at Shihab Burke LLC Immigration Lawyers is available to answer all your questions and discuss all the legal options at your disposal, regarding any Form I-140 related issues.
Though the form I-140 Immigrant Petition cannot be filed until the labor certification is approved, the date the labor certification is filed with the Department of Labor (DOL) establishes a foreign national’s priority date. If no labor certification is required, the date the form I-140 Immigrant Petition is filed becomes the priority date.
The priority date is essentially a foreign national’s “place in line” for adjustment of status or consular immigrant visa processing. Once a foreign national’s priority date is current on the Visa Bulletin, the foreign national is eligible to complete the green card process.
With the implementation of The American Competitiveness in the Twenty-First Century Act (AC21) came enhanced portability for foreign nationals whose application for adjustment of status was long delayed.
In other words, a foreign national, whose I-485 application has been pending for 180 days or more, may still be eligible for Employment-Based Permanent Residency adjustment of status (I-485 approval) even though they are no longer working for the form I-140 petitioning employer or in the labor certification/I-140 position.
Essentially, I-140 portability allows a foreign national to maintain the validity of their form I-140 petition even if they are no longer working for the original labor certification/I-140 sponsoring employer or in the original labor certification/I-140 position.
The requirements for I-140 portability, however, can be quite complex as discussed below. It is highly advisable to seek the assistance of an experienced immigration attorney when dealing with AC21 portability issues to avoid unnecessary delays or possible negative consequences in the permanent resident process.
To successfully move to a new position pursuant to I-140 portability, a foreign national’s new position must be in the same or a similar occupational classification. There are three key criteria the U.S. Citizenship and Immigration Services (USCIS) adjudicators consider when determining whether two jobs are in the same or a similar occupation classification:
The USCIS adjudicators will compare the job duties in the labor certification/I-140 petition with the job duties for the new position. The more closely the job descriptions for the two positions mirror one another, the more likely the jobs are in the same or a similar occupational classification.
Similarly, USCIS adjudicators will examine the DOT or SOC code assigned to each position. The closer the DOT/SOC codes, the more likely the positions are in the same or a similar occupational classification.
The DOT/SOC code is typically assigned when a labor certification is required prior to filing the form I-140 petition, but the USCIS adjudicator will consider what DOT/SOC code would be appropriate if none is assigned.
The DOT and SOC systems were created to track and statistically analyze occupation related data. The DOT system, created by the Department of Labor’s Employment and Training Administration and last updated in 1991, is the predecessor to the SOC system. The SOC system, developed by the Department of Labor’s Bureau of Labor Statistics, groups all jobs into one of over 820 occupations according to their occupational definition.
A discrepancy in wage between the labor certification/I-140 position and the new position is not a justifiable basis alone to deny an I-485 adjustment of status application in portability cases. However, a large discrepancy between the new position wage and the labor certification/I-140 position wage can be a “red flag” to USCIS adjudicators that the positions may not be in the same or a similar occupational classification.
Accordingly, USCIS adjudicators are allowed to take wage discrepancies into consideration but cannot use them as the sole basis for denying an adjustment application in a portability case.
The geographic location of the new position does not impact the analysis of I-140 portability. So long as the new position satisfies the same or a similar occupational classification requirement, the new position can be in the same or a different geographic location.
A foreign national can “port” to self-employment if the same or similar occupational classification requirement is met, but it is important to note that additional legal complexities arise when dealing with self-employment. The USCIS may require additional evidence proving that the self-employment position and employer are both legitimate.
Further, porting to self-employment may raise legal questions regarding the true intention behind the I-140 petition. For employer-sponsored adjustment of status, the I-140 petitioning employer and foreign national beneficiary must have genuinely intended, at the time both the form I-140 petition and I-485 application were filed, to undertake an employment relationship upon the foreign national’s adjustment of status.
The form I-140 documents must support this assumption or additional evidence may be requested by the USCIS. Again, there are many sophisticated legal issues surrounding self-employment, and AC21 rules in general, and it is highly recommended that assistance from an experienced immigration attorney be sought to avoid delays or possible negative consequences in the immigration process.
The American Competitiveness in the Twenty-First Century Act, Section 106(c) (AC21 106c) provides for the continued validity of an approved I-140 petition when a foreign national changes jobs or employers if the following conditions are met:
The portability provisions under AC21 106c are quite complex and matters can become especially complicated when a foreign national attempts to join a new employer or position before their I-140 petition has been approved.
As discussed below, the law in this area is extremely convoluted and it is highly recommended that an experienced immigration attorney be consulted anytime benefits are sought pursuant to AC21 law, particularly AC21 portability.
In certain situations, the form I-140 petition and I-485 application may have been filed concurrently and, therefore, both remain pending for 180 days or more. It is important to note that the passage of 180 days beyond the filing of an I-485 application does not automatically validate an unapproved form I-140 petition for AC21 portability purposes. To qualify for I-140 portability, a pending form I-140 petition must be, or have been, approvable when filed.
If a foreign national attempts to join a new employer or position from an unapproved form I-140 petition, the U.S. Citizenship and Immigration Services (USCIS) must first review and adjudicate the form I-140 petition. Under AC21 rules, the I-140 petition must be approved to receive a favorable USCIS determination on an I-140 portability request.
If the form I-140 petition is approved, the USCIS will then undertake an analysis of whether the new position is in the same or a similar occupational classification as the labor certification/I-140 position.
When reviewing a pending form-140 petition to determine AC21 portability, the USCIS will apply a preponderance of the evidence standard. This means the evidence contained in the form I-140 petition must establish that the foreign national’s claim is “probably true” or “more likely than not” true. If the form I-140 petition meets this rather lenient standard, it will be approved by the USCIS.
If the form I-140 petition is approvable but for an ability to pay issue, or some other issue that arises due to the passage of time after filing, the USCIS should approve the form I-140 petition on its merits. Likewise, upon porting to a new employer or position from an approved form I-140 petition, it is inappropriate for a USCIS adjudicator to reopen the “ability to pay” inquiry or request proof of the new employer’s ability to pay.
Despite the greater job flexibility offered under Section 106(c) of The American Competitiveness in the Twenty-First Century Act (AC21 106c), there are a number of situations where the I-140 petition will no longer be considered valid for AC21 portability purposes, including:
Due to the complexities involved, it is important to always consult with an experienced immigration attorney regarding the circumstances of your case to avoid errors that can jeopardize your immigration.
In the event an form I-140 petition (approved or unapproved) is withdrawn by the employer or revoked by the USCIS prior to the I-485 application pending for 180 days, the form I-140 petition will no longer be valid for AC21 portability purposes. Further, it is also within the discretion of the USCIS adjudicator to deny the I-485 application immediately upon the withdrawal or revocation of the I-140 petition if the I-485 application has been pending less than 180 days.
Under certain circumstances, an employer may withdraw an approved form I-140 petition if the foreign national beneficiary accepts employment with another employer in the same or a similar occupation. If an approved form I-140 petition is withdrawn, it will nonetheless remain valid for AC21 portability purposes so long as the associated I-485 application has been pending for 180 days or more.
When an I-140 sponsoring employer requests that an approved I-140 petition be withdrawn, the USCIS will check whether evidence that the new position is in the same or a similar occupational classification has been submitted. If evidence of a new qualifying offer of employment has not been received by the USCIS, a Notice of Intent to Deny (NOID) the pending I-485 application may be issued.
A timely response to the NOID, containing the evidence necessary to prove there is a new offer of employment in the same or a similar occupational classification, will be required in order for the underlying I-140 petition to remain valid.
The USCIS adjudicator has, within his or her discretion, the ability to immediately deny a pending I-485 application if there is no response to the NOID or the response fails to adequately show a valid offer of employment in the same or a similar occupational classification.
The USCIS can revoke a previously approved I-140 petition, and immediately deny the corresponding I-485 application, if they determine fraud was involved or if the petition should not have been approved originally. The foreign national beneficiary does not have to be working for the I-140 sponsoring company prior to the approval of the I-485 application.
However, an I-140 petition will be considered fraudulent if the sponsoring employer and foreign national beneficiary did not truly intend to engage in a bona fide employment relationship upon the approval of the I-485 application.
The sponsoring employer and foreign national beneficiary must have genuinely intended to undertake the employment relationship at both the I-140 petition and I-485 application filing stages (if not filed concurrently).
Revocation of an approved I-140 petition may also be premised upon the invalidation of the underlying labor certification. The Department of Labor may revoke an approved labor certification upon finding that the initial certification was not justified.
Likewise, the Department of State and/or the Department of Homeland Security may invalidate a previously approved labor certification if it is determined that there was fraud or a willful misrepresentation of a material fact in the labor certification application. If the labor certification supporting the I-140 petition is subsequently revoked or invalidated, the I-140 petition is no longer valid.
If a pending I-140 petition is denied, it is no longer valid for AC21 portability purposes. The timing of the denial is not taken into consideration by the USCIS. Accordingly, even if the I-140 petition was denied after the I-485 application was pending for 180 days and/or after a request for portability was received by the USCIS, an I-140 denial will invalidate the I-140 petition for portability purposes.
On October 17, 2000, The American Competitiveness in the Twenty-First Century Act (AC21) was signed into law by President Clinton. Among other things, the new AC21 law provided greater job flexibility to foreign nationals experiencing long delayed adjustment of status by allowing for I-140 portability.
AC21 106(c) allows for greater job flexibility for long delayed green card applicants. A foreign national may take advantage of AC21 portability and accept a new position with the same or a different employer if the following conditions are met:
The purpose of the form is to verify that the new job exists and to provide the information necessary to determine if the new job is in the same or a similar occupational classification.
In certain situations, the I-140 petition and I-485 application to adjust status may have been filed concurrently and both remain pending for 180 days or more. Foreign nationals that attempt to move to a new position or employer with an unapproved I-140 petition are not automatically entitled to Section 106(c) portability under AC21. If a foreign national attempt to port to a new employer or position off of an unapproved I-140 petition, the USCIS must first review and approve the I-140 petition.
Once the I-140 petition is approved, the USCIS will then examine the I-485 adjustment of status application to determine whether the new position is in the same or a similar occupational classification. Only if the I-140 petition is approved and the “same or similar occupational classification” requirement is satisfied will USCIS grant portability under Section 106(c).
