Neufeld Memo of USCIS on H1B/GC under AC21 : Part 3
Posted Aug 08, 2008
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Read Parts 1 & 2, analyzing this May 30, 2008 Memo :
Neufeld Memo of USCIS on H1B/GC under AC21 : Part 1  Jul.04.2008
Neufeld Memo of USCIS on H1B/GC under AC21 : Part 2  Jul.11.2008
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A number of H1B-related policies contained in a USCIS memo issued on May 30, 2008 have been reported previously to MurthyDotCom and MurthyBulletin readers. This memo, issued by Donald Neufeld, Acting Associate Director, Domestic Operations at USCIS, interprets certain provisions of the American Competitiveness in the Twenty-First Century Law of 2000 (AC21). This final article in our three-part series discusses the guidance regarding changing employers during the employment-based permanent residence ("green card") process. The specific issue relates to changes of employment in situations where the I-140 petition filed by the sponsoring employer is not approved at the time of the job change under the AC21 provisions.
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AC21 Portability Guidance
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This memo provides guidance on AC21 portability in the green card context, in light of a 2005 decision issued by the Administrative Appeals Office (AAO), in a case entitled Matter of Al Wazzan. The USCIS reemphasized the fact that, in order to utilize the portability provisions of AC21, the original sponsoring employer's I-140 petition must be considered valid, as that is the term used within the AC21 law. The Al Wazzan case analyzes the meaning of "valid" in this context in detail. It concludes that the I-140 petition must have been filed on behalf of a foreign national who is entitled to the requested classification and that petition must have been approved by the USCIS. The exact meaning of the memo is less clear. First, we present what is clear. We then explain what is less clear or falls into gray areas under this case.
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The I-140 Petition must be Bona Fide and Valid
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The original sponsoring employer's I-140 petition is the basis for the Application for Adjustment of Status to Permanent Residence (I-485). In order to be considered valid, the I-140 petition must have been filed on behalf of an employee who would have been entitled to the employment-based classification requested at the time of the filing. The memo and the Al Wazzan case state in no uncertain terms that an I-140 petition that was never eligible for approval does not somehow become valid simply because it is not adjudicated by the USCIS for 180 days.
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For example, if a company files an I-140 petition for an employee who does not have the experience and/or education required under the labor certification, it cannot be approved. If there is a concurrent I-140/I-485 filing, and there is no decision on the I-140, the foreign national cannot use AC21 portability to permit the I-140 to remain valid with respect to a new job offer, since it was never valid at any point. If the I-140 petition is faulty or deficient, and it is not a good filing, then it cannot be the basis for a green card, simply because it was not denied before the passage of 180 days. The case must have a proper foundation for the employee to take advantage of AC21 portability under the adjustment-of-status provisions, or it cannot go forward.
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Risky to Attempt I-485 Portability under AC21 without I-140 Approval

Under many interpretations of the law and applicable memos, it is risky to attempt to use the AC21 portability provisions prior to the approval of the I-140 petition.  In order to get the green card case approved, there must be an I-140 approval. Thus, using AC21 portability prior to the I-140 approval should not be attempted unless one loses the employment, has no other choice, or has another alternative option to file and obtain permanent residence.
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Is an Approvable I-140 Petition Good Enough?
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The Al Wazzan case was designated as a USCIS adopted decision. In the notice announcing the adoption of the case, Robert Divine, then the Acting Deputy Director, used the term "approvable" in reference to what is required of an I-140 petition in an AC21 case. The notice states that an I-140 petition that is deniable (i.e. not approvable) cannot be the basis for the approval of an adjustment-of-status case under the provisions of AC21. The notice further explains that the holding in the case is consistent with previous policy set out in the May 12, 2005 Yates Memo (later reissued on December 27, 2005), which allows the use of AC21 in adjustment applications involving approvable petitions.
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Neufeld Memo Implies Incorporation of "Approvable" Standard for I-140 Petition
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Since the Neufeld Memo states that the holding in the Al Wazzan case is consistent with the guidance previously issued by the USCIS in a December 27, 2005 memo, it would seem that, although the language in the Neufeld Memo would, at first reading, seem more restrictive, the "approvable" standard has not been eliminated. While the memo does not reiterate the approvable standard, it references the December 27, 2005 memo and, in particular, the guidance provided in a question-and-answer section of the memo on this precise issue. That guidance stated that, under the approvable standard, when AC21 is invoked the USCIS must review the I-140 petition to determine if it is approvable, or would have been approvable had it been adjudicated within 180 days of filing. If the I-140 petition meets this approvable standard, it should be approved. The adjustment of status (or I-485) then should be reviewed under the remaining AC21 portability requirements. The December 27, 2005 memo is described in our October 6, 2006 NewsBrief, USCIS Reissues AC21 Memo with Clarification, available on MurthyDotCom.
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Conclusion
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Based on the above, it is clear that the entire issue of AC21 adjustment-of-status portability is a complex and evolving issue, with the standard being debated by the USCIS and the courts. It is helpful that the USCIS has issued some clarification, but there are many gray areas under the law. It is best to consult on this matter with an experienced, knowledgeable immigration attorney to determine one's risks and options, since much rests on a decision to change employers and take advantage of the provisions under AC21.