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12/30/2015: Portability of Approved I-140 Petition Under the Proposed Rule
of Modernization
The proposed rule indicates that those with the approved I-140 petition will
enjoy portability of the approved I-140 petition once 180 days pass from
the date of the I-140 approval. If the approved petition is withdrawn by the
sponsoring employer within 180 days of the I-140 approval, the USCIS will
revoke the approved I-140 petition and he/she will not be able to use it for
portability or for I-485 application in the future using the approved
petition. Meanwhile, if he/she ports after 180 days of approval of the I-140
petition, even if the sponsoring I-140 petition employer withdraws the
approved petition, the USCIS will not be able to revoke the approved I-140
petition and such approved I-140 petition will remain valid unless it
revokes based on its determination of misrepresentation or fraud or error of
the agency in approval. For the reasons, practically the proposed rule
requires that the beneficiary of the approved I-140 petition should not
change employment for 180 days, even if for a same or similar occupational
classification. Inasmuch as he/she changes the employment after 180 days of
I-140 approval, the new employer does not have to sponsor another PERM
application and another I-140 petition to keep him or her without affecting
his/her green card eligibility. One catch is that unlike the current law,
the new employer will have to certify that the job is a same or similar job
and the job will continue to exist through the time of approval of his/her
green card application. Under the current law, I-140 sponsoring employer and
the foreign worker must attest to such facts, but not for the new employer
who hires a foreign worker using the approved I-140 portability. Another
catch is that because of the restrictive requirement of EAD eligibility for
such foreign workers, as this reporter reported earlier, the proposed rule
practically asks the foreign workers to keep working for a new employer
using one of the employment authorized nonimmigrant visa classifications.
12/30/2015: Portability of Approved I-140 Petition Under the Proposed Rule
of Modernization
The proposed rule indicates that those with the approved I-140 petition will
enjoy portability of the approved I-140 petition once 180 days pass from
the date of the I-140 approval. If the approved petition is withdrawn by the
sponsoring employer within 180 days of the I-140 approval, the USCIS will
revoke the approved I-140 petition and he/she will not be able to use it for
portability or for I-485 application in the future using the approved
petition. Meanwhile, if he/she ports after 180 days of approval of the I-140
petition, even if the sponsoring I-140 petition employer withdraws the
approved petition, the USCIS will not be able to revoke the approved I-140
petition and such approved I-140 petition will remain valid unless it
revokes based on its determination of misrepresentation or fraud or error of
the agency in approval. For the reasons, practically the proposed rule
requires that the beneficiary of the approved I-140 petition should not
change employment for 180 days, even if for a same or similar occupational
classification. Inasmuch as he/she changes the employment after 180 days of
I-140 approval, the new employer does not have to sponsor another PERM
application and another I-140 petition to keep him or her without affecting
his/her green card eligibility. One catch is that unlike the current law,
the new employer will have to certify that the job is a same or similar job
and the job will continue to exist through the time of approval of his/her
green card application. Under the current law, I-140 sponsoring employer and
the foreign worker must attest to such facts, but not for the new employer
who hires a foreign worker using the approved I-140 portability. Another
catch is that because of the restrictive requirement of EAD eligibility for
such foreign workers, as this reporter reported earlier, the proposed rule
practically asks the foreign workers to keep working for a new employer
using one of the employment authorized nonimmigrant visa classifications.
