By: Beth Robertie, Esq.
不久之前，美国移民局USCIS发布了有关在AC-21条例下I-140与I-485申请审核的Memo。
以下为有关此guidance的一些要点：
As you all know, USCIS is constantly issuing new guidance on its rules and
procedures. Not long ago, USCIS issued a memorandum regarding the processing
of I-140 employment-based immigrant petitions and I-485 Applications to Adjust
Status under AC-21, the regulation that authorizes the practice of “porting
” an I-140 immigrant petition to a new employer once the beneficiary’s I-485
has been pending for more than 180 days, among other things. If you are
unfamiliar with AC-21, please see our earlier memorandums on the subject here
and here. In the most recent guidance, USCIS made the following points:
* If a beneficiary is porting off of a concurrently filed but unapproved I
-140 and I-485 that has been pending for 180 days or more, the underlying I-
140 petition will be reviewed to determine if the case is approvable or would
have been approvable had it been adjudicated within 180 days. If the
underlying petition is approvable, the petition will be approved on its merits
, then the I-485 will be adjudicated to determine if the new position is the
same or similar occupation classification for I-140 portability purposes.
* If for some reason the underlying I-140 petition is denied after the
beneficiary has ported to a new employer, the I-485 and the portability
request will both be denied as there was never an approved (or approvable)
petition from which to port.
* A difference in wage offered on the approved labor certification,
initial I-140 and the new employment cannot be used as a basis of a denial.
However, a substantial discrepancy between the previous and new wage may be
taken into consideration as a factor in determining if the new employment is
“same or similar.”
* The fact that the beneficiary left the I-140 petitioner before the I-485
has been pending 180 days will not necessarily render the alien ineligible to
port. However, in all cases an offer of employment must have been bona fide.
In other words, as of the time the I-140 was filed and at the time of the I-
485 filing if the two are not filed concurrently, the I-140 petitioner must
have had the intent to employ the beneficiary, and the alien must have
intended to take the employment, upon adjustment. Take, for example, the
following situation: John, the alien beneficiary, works as an environmental
engineer for a mid-size engineering firm, Company A. Company A files a labor
certification for John and gets it approved. Company A then concurrently
files an I-140 and I-485 for John. Two months later, Company A suddenly goes
out of business. Because he had a bona fide offer of employment with Company
A and intended to take the employment at the time that the I-140 and I-485
were filed, John is entitled to work in a same or similar occupation with
another employer who is willing to sponsor him so long as Company A does not
revoke the I-140 before the I-485 has been pending for 180 days. Once his I-
485 has been pending for 180 days, John must notify USCIS that he has ported
his I-485.
* An I-140 is no longer valid for porting purposes when it is withdrawn
before the beneficiary’s I-485 has been pending 180 days, or it is denied or
revoked at any time except when it is revoked based on a withdrawal that was
submitted after an I-485 has been pending for 180 days.