Continuing Validity of Form I-140 Petition when the alien beneficiary claims eligibility benefits under §106(c) of AC21 due to a change in his or her employment.


08/04/03 Memo from William R. Yates /s/ Janis Sposato HQBCIS

MEMORANDUM FOR SERVICE CENTER DIRECTORS, BCIS REGIONAL DIRECTORS, BCIS
Continuing Validity of Form I-140 Petition in accordance with Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21)

The purpose of this memorandum is to provide field offices with guidance
on processing Form I-485, Application to Register Permanent Residence or
Adjust Status, when the beneficiary of an approved Form I-140, Petition
for Immigrant Worker, is eligible to change employers under §106(c) of
AC21.

On January 29, 2001, the legacy Immigration and Naturalization Service’s
(Service) Office of Field Operations issued a memorandum entitled
“Interim Guidance for Processing H-1B Applications for Admission as
Affected by the American Competitiveness in the Twenty-First Century Act
of 2002, Public Law 106-313.” On June 19, 2001, the Office of Programs
issued a follow-up memorandum entitled “Initial Guidance for Processing
H-1B Petitions as Affected by the American Competitiveness in the
Twenty-First Century Act (Public Law 106-313) and Related Legislation
(Public Law 106-311) and (Public Law 106-396).” On February 28, 2003,
Immigration Services Division issued a memorandum entitled “Procedures
for concurrently filed family-based or employment-based Form I-485 when
the underlying visa petition is denied.” These memoranda remain in
effect. On July 31, 2002, the Service published an interim rule
allowing, in certain circumstances, the concurrent filing of Form I-140
and Form I-485. Previous Service regulations required an alien worker to
first obtain approval of the underlying Form I-140 before applying for
permanent resident status on the Form I-485. Institution of the
concurrent filing process, and other issues relating to revocation of
approval of Form I-140 petitions, have resulted in questions on how to
process adjustment applications when the alien beneficiary claims
eligibility benefits under §106(c) of AC21 due to a change in his or her
employment.

A. Approved Form I-140 Visa Petitions and Form I-485 Applications

The AC21 §106(c) states:

A petition under subsection (a)(1)(D) [since re-designated section
204(a)(1)(F) of the Act] for an individual whose application for
adjustment of status pursuant to section 245 has been filed and remained
unadjudicated for 180 days or more shall remain valid with respect to a
new job if the individual changes jobs or employers if the new job is in
the same or a similar occupational classification as the job for which
the petition was filed. Accordingly, guidance in the June 19, 2001,
memorandum provides that the labor certification or approval of a Form
I-140 employment-based (EB) immigrant petition shall remain valid when
an alien changes jobs, if:

(a) A Form I-485, Application to Adjust Status, on the basis of the EB
immigrant petition has been filed and remained unadjudicated for 180
days or more; and

(b) 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 is still in effect and has not changed as a result of
implementation of the concurrent filing process.

If the Form I-140 (“immigrant petition”) has been approved and the Form
I-485 (“adjustment application”) has been filed and remained
unadjudicated for 180 days or more (as measured from the Form I-485
receipt date), the approved Form I-140 will remain valid even if the
alien changes jobs or employers as long as the new offer of employment
is in the same or similar occupation.1 If the Form I-485 has been
pending for less than 180 days, then the approved Form I-140 shall not
remain valid with respect to a new offer of employment. B. Provisions in
Cases of Revocation of the Approved Form I-140 1AC21 also provides that
any underlying labor certification also remains valid if the conditions
of §106(c) are satisfied.

As discussed above, if an alien is the beneficiary of an approved Form
I-140 and is also the beneficiary of a Form I-485 that has been pending
180 days or longer, then the approved Form I-140 remains valid with
respect to a new offer of employment under the flexibility provisions of
§106(c) of AC21.

Accordingly, if the employer withdraws the approved Form I-140 on or
after the date that the Form I-485 has been pending 180 days, the
approved Form I-140 shall remain valid under the provisions of §106(c)
of AC21. It is expected that the alien will have submitted evidence to
the office having jurisdiction over the pending Form I-485 that the new
offer of employment is in the same or similar occupational
classification as the offer of employment for which the petition was
filed. Accordingly, if the underlying approved Form I-140 is withdrawn,
and the alien has not submitted evidence of a new qualifying offer of
employment, the adjudicating officer must issue a Notice of Intent to
Deny the pending Form I-485. See 8 CFR 103.2(b)(16)(i). If the evidence
of a new qualifying offer of employment submitted in response to the
Notice of Intent to Deny is timely filed and it appears that the alien
has a new offer of employment in the same or similar occupation, the
BCIS may consider the approved Form I-140 to remain valid with respect
to the new offer of employment and may continue regular processing of
the Form I-485. If the applicant responds to the Notice of Intent to
Deny, but has not established that the new offer of employment is in the
same or similar occupation, the adjudicating officer may immediately
deny the Form I-485. If the alien does not respond or fails to timely
respond to the Notice of Intent to Deny, the adjudicating officer may
immediately deny the Form I-485.

If approval of the Form I-140 is revoked or the Form I-140 is withdrawn
before the alien’s Form I-485 has been pending 180 days, the approved
Form I-140 is no longer valid with respect to a new offer of employment
and the Form I-485 may be denied. If at any time the BCIS revokes
approval of the Form I-140 based on fraud, the alien will not be
eligible for the job flexibility provisions of §106(c) of AC21 and the
adjudicating officer may, in his or her discretion, deny the attached
Form I-485 immediately. In all cases an offer of employment must have
been bona fide, and the employer must have had the intent, at the time
the Form I-140 was approved, to employ the beneficiary upon adjustment.
It should be noted that there is no requirement in statute or
regulations that a beneficiary of a Form I-140 actually be in the
underlying employment until permanent residence is authorized.
Therefore, it is possible for an alien to qualify for the provisions of
§106(c) of AC21 even if he or she has never been employed by the prior
petitioning employer or the subsequent employer under section 204(j) of
the Act. Questions regarding this memorandum may be directed via e-mail
through appropriate channels to Joe Holliday at Service Center
Operations or to Mari Johnson in Program and Regulation Development.
Accordingly, the Adjudicator’s Field Manual (AFM) is revised as follows:

1. Chapter 20.2 of the AFM is revised by adding a new paragraph (c) to
read as follows:

20.2 Petition Validity.

(c) Validity after Revocation or Withdrawal. Pursuant to the provisions
of section 106(c) of the American Competitiveness in the Twenty-First
Century Act (AC21), Public Law 106-313, the approval of a Form I-140
employment-based (EB) immigrant petition shall remain valid when an
alien changes jobs, if:

A Form I-485, Application to Adjust Status, on the basis of the EB
immigrant petition has been filed and remained unadjudicated for 180
days or more; and

The new job is in the same or similar occupational classification as the
job for which the certification or approval was initially made.

If the Form I-140 has been approved and the Form I-485 has been filed
and remained unadjudicated for 180 days or more (as measured from the
form I-485 receipt date), the approved Form I-140 will remain valid even
if the alien changes jobs or employers as long as the new offer of
employment is in the same or similar occupation.

If the Form I-485 has been pending for less than 180 days, then the
approved Form I- 140 shall not remain valid with respect to a new offer
of employment.

Accordingly, if the employer withdraws the approved Form I-140 on or
after the date that the Form I-485 has been pending 180 days, the
approved Form I-140 shall remain valid under the provisions of §106(c)
of AC21. It is expected that the alien will have submitted evidence to
the office having jurisdiction over the pending Form I-485 that the new
offer of employment is in the same or similar occupational
classification as the offer of employment for which the petition was
filed. Accordingly, if the underlying approved Form I-140 is withdrawn,
and the alien has not submitted evidence of a new qualifying offer of
employment, the adjudicating officer must issue a Notice of Intent to
Deny the pending Form I-485. See 8 CFR 103.2(b)(16)(i). If the evidence
of a new qualifying offer of employment submitted in response to the
Notice of Intent to Deny is timely filed and it appears that the alien
has a new offer of employment in the same or similar occupation, the
BCIS may consider the approved Form I-140 to remain valid with respect
to the new offer of employment and may continue regular processing of
the Form I-485. If the applicant responds to the Notice of Intent to
Deny, but has not established that the new offer of employment is in the
same or similar occupation, the adjudicating officer may immediately
deny the Form I-485. If the alien does not respond or fails to timely
respond to the Notice of Intent to Deny, the adjudicating officer may
immediately deny the Form I-485.

If approval of the Form I-140 is revoked or the Form I-140 is withdrawn
before the alien’s Form I-485 has been pending 180 days, the approved
Form I-140 is no longer valid with respect to a new offer of employment
and the Form I-485 may be denied. If at any time the BCIS revokes
approval of the Form I-140 based on fraud, the alien will not be
eligible for the job flexibility provisions of §106(c) of AC21 and the
adjudicating officer may, in his or her discretion, deny the attached
Form I-485 immediately. In all cases an offer of employment must have
been bona fide, and the employer must have had the intent, at the time
the Form I-140 was approved, to employ the beneficiary upon adjustment.
It should be noted that there is no requirement in statute or
regulations that a beneficiary of a Form I-140 actually be in the
underlying employment until permanent residence is authorized.
Therefore, it is possible for an alien to qualify for the provisions of
§106(c) of AC21 even if he or she has never been employed by the prior
petitioning employer or the subsequent employer under section 204(j) of
the Act.

2. The AFM Transmittal Memoranda button is revised by adding the
following entry: Chapter 20.2(c) Provides guidance on the validity of
immigrant petitions under section 106(c) of AC21 (Public Law 106-313)
08/04/03

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Posted: Sun - September 28, 2003 at 07:58 PM        

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