Portability and Concurrent Filing Issues
Posted Jan 10, 2003

As regular readers of MurthyDotCom and the MurthyBulletin readers know, the INS has permitted concurrent filing of Forms I-140 (Immigrant Petition for Alien Worker) and I-485 (Application for Adjustment of Status) since July 31, 2002. This was widely applauded within the immigration community as a faster route to the green card. However, the process raises questions and concerns pertaining to the interaction of the concurrent filing procedure with the portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21).

When Does Portability Attach under AC21?

Since the passage of the Act in October 2000, various AC21 issues have been covered in the MurthyBulletin and are available on MurthyDotCom. AC21 portability allows for the approval of the I-485 through employment with a sponsor other than the employer who filed the labor certification. This "portability" is triggered after the I-485 has been pending, without decision, for 180 days or longer. The new employment position must be the "same or similar" to the position described in the labor certification. The technical reason the I-485 can be approved in this situation is that, under AC21, the I-140 petition remains valid with respect to the new employment in the situation described above. Therefore, the continuing validity of the I-140 petition is the essence of AC21 portability and the key to understanding its provisions.

Does Concurrent Filing Possibly Change AC21 Portability?

AC21 and the I-140 portability rule were created before the advent of concurrent filings. When I-140 portability was created through AC21, the I-140 had to be approved prior to the filing of the I-485. This was a long-standing requirement in immigration law. Therefore, all workers who were to use I-140 portability were to do so under the premise that the originally filed I-140 had already been approved. This raises important concerns for clients and practitioners alike regarding exactly how AC21 and concurrent filing work together. Is there portability if the I-140 is not approved? At what point is it "safe" to change jobs? At what point does the previous employer cease to have control over the I-140? There continue to be no regulations on AC21 even today - in January 2003 - over two years after passage of the AC21. The regulations may address some of these issues, but they appear to be a low priority for INS at this point in time, with the elimination of the INS and the advent of the Department of Homeland Security.

Liberal and Conservative Interpretations of AC21

There are liberal and conservative interpretations of AC21 and the I-140 portability rule. Those practitioners advocating on behalf of clients for a liberal interpretation may argue that portability attaches at the 180-day mark notwithstanding the non-approval of the I-140 petition. There are weaknesses in this argument, due to the wording of AC21 regarding the continuation of the validity of the I-140. This, presumably, requires a valid I-140 at some point. As attorneys acting in our role as "counselors," it may be best to encourage clients to take as conservative and safe a position as possible, while arguing and advocating an aggressive position for those who may have no choice, having been laid off or otherwise terminated from employment with the sponsor.

The conservative interpretation takes the position that the underlying I-140 must be approved in order for I-140 portability to attach. The argument for this view is because the portability wording from AC21, in section 204(j) of the Immigration and Naturalization Act (INA), states that the I-140 petition remains valid under certain conditions. “Remaining valid” is therefore interpreted to refer only to an I-140 that is actually valid (approved) at some point. This could exclude cases in which the I-140 is eventually denied or withdrawn, even if the denial or withdrawal occurs after 180 days. Simply put, there is a strong argument that the 180-day rule requires workers to have an approved I-140 at some point during the process and that, lacking the approval, the case is not approvable even after the 180-day point.

What this means for those with concurrently filed I-485s is that, to be safe, eligibility for portability benefits should not be presumed until the I-485 has been pending for 180 days or more AND the I-140 is approved. The 180 days would still be counted from the date of filing but the eligibility would not arise until both elements are met. Following are examples of the scenarios that may arise.

Scenario 1

The I-140/I-485 are filed concurrently. After 180 days, the I-140 has been neither approved nor denied. The foreign national changes jobs. The employer is displeased and withdraws the I-140 or fails to answer a Request for Evidence. There is no I-140 approval. Rather, there is a withdrawal or denial. In this case, it does not appear that the individual would be eligible for AC21 portability. There is no underlying, valid I-140 to "remain valid" so as to allow for the I-485 approval. Put another way, I-140 approval is needed for I-485 approval, even with AC21.

It should be noted that, in this scenario, withdrawing the I-140 prior to approval is different from revoking it after approval. I-140s can be withdrawn at any time prior to approval. After approval, if the employer no longer wishes to support the I-140, the employer can request that the INS revoke the approval. According to the INS, I-140 revocation after the I-485 has been pending for 180 days should not prevent I-485 approval.

Scenario 2

The I-140 and I-485 are filed concurrently. After 180 days, the I-140 has been neither approved nor denied. The individual stays in his job and, on the 200^th day, the I-140 is approved. At this point it would appear that this person becomes eligible for AC21 portability, provided s/he had a job offer with a new employer in the same or a similar position.

Given the importance of the issues that arise at the crossroads of I-140 portability and/or concurrent flings, we at MurthyDotCom and the MurthyBulletin diligently follow all official announcements and report developments regarding these issues to our readers.