Home » Columnists » ANSWERS TO QUESTIONS ABOUT PORTABILITY AND PRIORITY DATE RETENTION FOR I-140 BENEFICIARIES AND OTHER RELATED ISSUES

ANSWERS TO QUESTIONS ABOUT PORTABILITY AND PRIORITY DATE RETENTION FOR I-140 BENEFICIARIES AND OTHER RELATED ISSUES

Sharlene Sharmila Richards

Sharlene Sharmila Richards

Q: My present employer had submitted labor certification and I have an approved I-140 Petition for Alien Worker which was just approved. I have yet to file for my adjustment of status because my priority date is not current and may not be current for a long time. I also hold H-1B status. I wish to move to another employer. What happens to I-140 petition and Labor Certification?
A: According to the new rule which came into effect on January 17th, 2017, an I-140 petition that has been approved for 180 days of more cannot be automatically revoked even if the employer goes out of business or withdraws the petition. The result of this is the foreign national will need a new labor certification and new I-140 petition in order to eventually obtain employment based permanent residence. However, the foreign national will generally be permitted to retain his or her priority date for the subsequent I-140 petition. If you transfer now, you could be in a position where you are not able to retain the I-140 priority date for the subsequent I-140 petition if your employer were to withdraw their I-140 petition before 180 days of its approval.
Q: I left my old employment two weeks ago and I was informed that my employer will withdraw their I-140 Petition. The I-140 Petition was approved in 2015, more than two years ago while I was in my 4th year of H-1B status. My new employer will be filing a new I-140 Petition. My priority date to file adjustment of status is not yet current. Can I retain the I-140 petition priority date? Am I still eligible to continue to renew my H-1B beyond the usual 6 year limit?
A: Yes, you should be able to retain the old I-140 priority date for the subsequent I-140 petition, unless the reason for the revocation was for fraud, fraudulent misrepresentation, material USCIS error or error in the underlying Labor Certification. In your case, you should be able to apply for the 3 year extension of your H-1B status beyond the usual 6 year period.
Q: I have an approved I-140 petition and have filed for adjustment of status. My adjustment of status has been pending for 8 months now. I wish to transfer to a new employer to do same kind of job with similar duties. Will this affect my I-140 Petition and Adjustment of Status?
A: Under the new rule, the beneficiary of a pending I-140 petition is permitted to port to a new employer and port the I-140 petition if the application for adjustment of status has been pending for 180 days or more as long as the pending I-140 petition was approvable when filed and remained approvable for 180 days after filing of the application for adjustment of status. In addition, the new position must be in the same or similar occupation as the original Labor Certification or I-140 petition if no Labor Certification was needed.
Q: My work authorization renewal application based on adjustment of status is taking more than 4 months to process and my current work authorization will expire soon. Do I need to worry?
A: The new January 17th, 2017 rules, USCIS is no longer required to process work authorization within the mandated 90 days. Now there is a 180 day automatic work authorization extension for adjustment applicants who have timely filed their request for EAD renewals. Under this rule, you are also now allowed to file EAD renewal requests up to 180 days before the EAD expiry date.
Q: I am filing employment based adjustment of status. Must I also file Form I-485 Supplement J?
A: If your I-140 petition is one which requires a job offer, this Form is needed to confirm that the job offered to you in the I-140 petition remains a bona fide job offer that you intend to accept once your application for adjustment of status is approved. Supplement J is also needed if you are requesting for job portability to a new full time permanent job offer in a same or similar occupational classification as that of your I-40 petition which is the basis of your application to adjust status.
Disclaimer: Any advice provided in this article is general in nature and not intended to constitute legal advice for any specific case. Please consult with an immigration lawyer about the specific circumstances of your case.
My Bio
Sharlene Sharmila Richards is a licensed Immigration lawyer practicing in Houston, Texas. She is a member of the American Immigration Lawyers Association. She was admitted to the New York State Bar in 2000 and is a member of the 5th Circuit Court of Appeals and a member of the US Supreme Court. You may contact her at telephone number 713-623-8088 or by email at srichardslaw@aol.com to schedule a free consultation to discuss your case.


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