Murthy Law Firm Obtains AC21 Option Letter on "Porting"
Prior to I-140 Approval  Posted Nov 20, 2009
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In a recent letter, the U.S. Citizenship and Immigration Services (USCIS) responded to the Murthy Law Firm’s query as to what happens when the underlying I-140 petition has not been adjudicated prior to a change in employment by the adjustment-of-status (I-485) applicant. The USCIS clarification is regarding the American Competitiveness in the Twenty-first Century Act (AC21) on a topic about which our clients often inquire. In the letter dated October 19, 2009, Barbara Velarde, the Chief of the USCIS Service Center Operations provided some useful guidance. We at the Murthy Law Firm found it necessary to seek such clarification, separate and apart from current USCIS guidance memos, due to inconsistent application of the law and conflicting interpretation of various USCIS memos.
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"Porting" Before I-140 Approval
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There are many cases in which the employment-based petition (Form I-140) is concurrently filed with the application for adjustment of status (Form I-485). This has raised questions regarding the application of the adjustment of status (AOS) AC21 portability provisions or the green card portability provisions, when the foreign national changes jobs before the I-140 is approved. The USCIS issued memos on the topic, the most recent of which is available in our August 8, 2008 article, Neufeld Memo of USCIS on H1B/GC under AC21: Part 3.
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Prior USCIS Memos on the I-140 Approvable-When-Filed Issue
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Earlier USCIS memos were intended to provide the necessary interpretation on the details of AC21, as the USCIS has not issued regulations on this law. It should be noted that the October 19, 2009 letter from Ms. Velarde mentions that the USCIS is in the process of drafting regulations on AC21. There have been previous such USCIS announcements, however, during the nine years since AC21 was enacted.
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The memos interpret the terminology in AC21 that states that an I-140 "remains valid" with respect to a change of job or employer if certain conditions are met. The memos, in applying and adopting an Administrative Appeals Office case, state that an I-140 petition that was deniable when it was filed cannot serve as the basis for adjustment of status to permanent residence. The memos set forth a procedure for examiners to review such I-140 petitions to determine whether they were "approvable when filed." Our letter sought confirmation and further clarification on this matter, in an effort to address certain problems that the Murthy Law Firm has identified in such cases.
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USCIS Clarifies I-140 Approvable-When-Filed Standard
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The USCIS confirmed that, in order for an I-140 petition to remain valid under the AC21 provisions, it must have been valid when it was filed. Thus, before making a determination regarding the AC21 portability provisions, the adjudicator must have made a favorable determination on the I-140 petition. Prior to the enactment of the law under AC21, it was necessary for the original job offer contained in the I-140 to still exist in order to obtain a favorable determination.
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As confirmed in the October 19th Velarde letter, the determinations of eligibility for AC21 portability are made in the context of the I-485 adjudication, not the I-140 adjudication. "The USCIS will first determine if the I-140 petition is approved or approvable," and then will address the issue of whether the new employment meets the AC21 same or similar occupational classification requirement. The letter confirms that, in the process of adjudicating the I-485, the examiner will check to see if there is an approved I-140. If not, and the individual is seeking to utilize AC21 adjustment portability, the adjudicator will determine whether the unapproved, pending I-140 petition was approvable when filed. Then, if the I-140 can be approved under the approvable-when-filed standard, the adjudicator will review the I-485.
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Risky to Port under AOS AC21 Provisions before I-140 Approval
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The use of AC21 portability when the I-140 petition has not yet been approved remains risky. One of the key problems includes the possibility of a request for evidence (RFE) on the I-140 petition. As Ms. Velarde's letter explains, when the I-140 is reviewed under the approvable-when-filed standard, the USCIS can issue an RFE on the merits of the I-140. Since the I-140 is filed by the employer, under current practices, the RFE is sent to the employer. Thus, even if the RFE addresses matters that involve the beneficiary, such as education and experience, it will be transmitted to the employer. If the employer does not respond, or responds stating the beneficiary is no longer employed by the petitioner, the I-140 will likely be denied.
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This is problematic and, since the I-140 is adjudicated in the context of the I-485, this approach raises legal concerns. It should be noted that the standard confirmed in the letter is "approvable when filed." For example, if a business ceases to exist at some point after the I-140 petition filing, and before the review of the case, any RFE issued to that business will not be answered. Such a case would be denied, even if the I-140 petition truly was valid and approvable when filed. Thus, under current procedures, the USCIS is not always making a proper assessment under the approvable-when-filed standard.
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Conclusion
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We at the Murthy Law Firm appreciate the USCIS's prompt response to our letter requesting clarification of key AC21 issues. We hope that this will help to provide a more uniform approach to the cases addressed by the Velarde letter. We also urge further consideration from the USCIS as to whether their current procedures in transmitting RFEs to prior employers serve the intended purpose of determining if an I-140 was approvable when filed. It is our contention that, in many situations, the answer is no. This October 19, 2009 letter from Ms. Velarde provides a ray of hope for those who are forced to leave their sponsoring employers, since it reiterates and reinforces a standard that has been applied inconsistently by the USCIS. We at the Murthy Law Firm will continue to dialogue with the USCIS. Along with the American Immigration Lawyers Association and other interested parties, we will work to obtain clarification and a more consistent approach in USCIS adjudications of I-485s.