AC 21: Portability of approved I-140 without I-485 (consular processing instead)

[txaggie]

Immigration Gurus,

I recently came across the memo released by Mr. Willam Yates of the
USCIS on May 12,2005 which provides guidance about the I-140
portability provision of AC21(Public Law 106-313) and am wondering if
I can benefit from that part of the law.

I am the beneficiary of an approved labor certification and I-140
petition for permanent residence through a prior employer.The priority
date of that labor certification is July 22,1999. The I-140 was
approved in August,2000. I susbsequently opted for consular processing
(NOT adjustment of status through the I-485) and filed an I-824 to
process through a consulate abroad.
I changed employers before the consular processing of my permanent
residency was done.

My approved labor certification and I-140 were for a software engineering position, and my current employment is in that field of work as well . The
approved I-140 has not been withdrawn.

Can I benefit from this Guidance about the AC21 Law, and have my
current employer file an adjustment of status application on my behalf
on the basis of the I-140 approved through my prior employer?

Please advise. I sincerely appreciate your taking the time.

[gd_by2001]

Txaggie:

I think AC21 portability rule did not applicable to you. Since you had changed your employer before your PR consular processing was granted. If you had applied AOS (I-485) inside of US, the answer was “YES” for your case (If you already had had I-140 be approved and your I-485 was pending more that 183 days). But if you applied consular processing outside of US the story would totally be difference! As I know the answer was “NOT”for your case! You should wait until you consular processing was granted (I mean PR was granted) then you could change your employer, but not middle of consular processing! And it was also good to mention that AC-21 portability rule was applicable to alien who applied to AOS (I-485) inside of US not the consular processing!

For any legal advice, please contact immigration lawyer

All the best!

[txaggie]

thanks for your note, gd_by2001..
On another forum, I received the following response to my above question :

"First of all, I-485 is your personal application. Your employer does not file it. Since your I-140 is approved and not yet withdrawn, you can go to any attorney, file for your I-485 based on the approved I-140, wait for 180 days and if it remains in pending status, exercise AC21 with new employer.

AC21 is not usable if you opt for counsellor processing."

I would like to know if the above is something that can be done. If yes, what are the steps involved (what forms,etc to fill) to "exercise AC21 with new employer."?

[gd_by2001]

Never heard about those explanation!

Txaggie:

Never heard about those! Would you please send me the URL link to following answer?

"First of all, I-485 is your personal application. Your employer does not file it. Since your I-140 is approved and not yet withdrawn, you can go to any attorney, file for your I-485 based on the approved I-140, wait for 180 days and if it remains in pending status, exercise AC21 with new employer.

AC21 is not usable if you opt for counselor processing."

So far as I knew AC21 was applicable only to AOS (I-485) alien inside the US, not including consular processing! But AOS alien could be a beneficially of this rule if only if:

- If you already had had I-140 be approved and
- Your I-485 was pending more that 183 days which had not been ajusticated.
- Your next job was similar to your previous job as it was mention in your LC.

If I was not wrong! William Yate explanation to AC21 portability rule did not mention about consular processing case! And please had not made any good assumption on top of your case, before changed the job!

So my recommendation for you was why you had not contacted one or two immigration lawyer, before you changed the job! And you would quickly find if you were able be a beneficially of AC21 rule or not!

All the best!

Good luck!

[[email protected]]

Thanks All,

I'm in the same situation as you are, could you please update on your case as i'm also checking with attorney if any law would allow to file AC21.

[Chaoray]

Thanks All,

I'm in the same situation as you are, could you please update on your case as i'm also checking with attorney if any law would allow to file AC21.

Hi

I am also in same situation

Is there any update on case?

Thank you