I filed an I-140 downgrade case in October along with my I-485, and both are still pending. Can I use AC21 to port to a similar position with a different employer?

Answer

Technically speaking, to qualify for AC21 portability when the I-140 is still pending, the I-140 must be “approvable when filed.” Assuming all the standard AC21 requirements are met (e.g., porting to the same or similar job), this may be an option, but it is not necessarily risk-free.

In practice, if the employer that filed the I-140 withdraws it, or if an RFE is issued on the I-140 and the employer fails to adequately respond, the beneficiary could be left in a challenging position. Anyone considering this option may wish to first consult with an experienced attorney. (10.Jun.2021)

Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.

Copyright © 2021, MURTHY LAW FIRM. All Rights Reserved