BCIS’s Latest Memo on AC21’s 180 Day Portability Rule and How it Applies to Concurrent Filings of Forms I-140 and I-485
The uncertainty of being able to hold permanent jobs in today’s unsteady economy has created a lot of anxiety for many non-immigrant workers whose employment based green card process is still pending. Moreover the increasing backlogs at the BCIS to process immigrant petitions have added more fear in minds of these workers. For many of these workers the passage of the American Competitiveness in the Twenty First Century Act of 2000 (AC21) is a blessing.
AC21 section 106 (c) states that if Form I-140 has been approved and if the Form I-485 has been filed and remains unadjudicated for 180 days, then the approved Form I-140 petition will remain valid even if the foreign worker changes jobs or employers as long as the new job is in the same or similar occupational classification as the job for which the certification or approval was initially made. This policy remains in effect and has not changed as a result of the concurrent filing of I-140 and I-485 process.
In a memo dated August 4, 2003 BCIS provided guidance on the I-485 portability issue in light of concurrent filing of Form 1-140 and I-485 petitions.
Approved I-140 Visa Petitions and Form I-485 Applications
BCIS states that if the Form I-140 has been approved and the Form I-485 has been filed and remained unadjudicated for 180 days or more the approved I-140 will remain valid even if the foreign worker changes jobs or employers as long as the new offer of employment is in same or similar occupation. The beneficiary (foreign worker) of the I-140 and I-1485 petition will have to inform the appropriate BCIS office that a new offer of employment is in the same or similar occupation classification as the offer of employment for which the petition was filed.
Provisions in Cases of Revocation or Withdrawal of an approved Form I-140
As stated above if the Form I-140 has been approved and the I-485 has been pending for 180 days or longer then the approved Form I-140 remains valid even if the employer withdraws the approved I-140 on or after the 180 days have passed. However, if the approved I-140 is revoked or withdrawn by the employer before the beneficiary’s Form I-485 has reached the180 days period then the approved I-140 is no longer valid with respect to the new offer of employment and the Form I-485 may be denied. If BCIS revokes the I-140 based on fraud then the flexibility of section 106 (c) no longer applies and the I-485 can be denied.
BCIS emphasis that the employer must have had a bonafide intent of employing the beneficiary (foreign worker) at the time the Form I-140 is approved and to employ the beneficiary permanently upon the approval of permanent residency status. Therefore there is no provision in section 106 (c) that a beneficiary actually be in the underlying employment until permanent residency is authorized.
On September 15, 2003, BCIS issued a memorandum stating that absent any additional H-1B legislation enacted before the end of the current fiscal year, H-1B petitioners who file I-129 petitions on or after October 1, 2003, will no longer be required to submit the additional $1000 filing fee. This is a result of the sunset provision in the Immigration and Nationality Act (INA) section 214 (c)(9)(A). The annual cap on H-1B approvals will also be reduced from 195,000 to 65,000 starting October 1, 2003.
The BCIS will reject petitions filed on or after October 1, 2003 that include the additional filing fees of $1000 together with the base fee of $130 in a single remittance. If these fees are in separate remittance then the $1000 fee will be rejected and the H-1B petition and $130 will be accepted.
A Higher Scrutiny by the Department of State When giving Visas:
In response to the attacks of September 11, 2001, the State Department, working with other U.S. Government agencies, has been engaged in an extensive and ongoing review of visa issuing practices as they relate to our national security.
Visa applications are now subject to a greater degree of scrutiny than in the past. For many visa applicants, a personal appearance interview is required as a standard part of visa processing. Additionally, applicants affected by these procedures are informed of the need for additional screening at the time they submit their applications and are being advised to expect delays. The time needed for adjudication of individual cases will continue to be difficult to predict.
For travelers, the need for an interview will mean additional coordination with the embassy or consulate is needed to schedule an interview appointment. The Department of State recommends that individuals build in ample time before their planned travel date when seeking to obtain a visa.
The author, Aparna Davé is an immigration attorney, with a J.D. from Boston University and a B.A. in Sociology. She has worked at the Immigration Clinic of Harvard Law School and was a member of Boston University School of Law’s Public Interest Law Journal.