Houston immigration lawyer answers your questions about premium processing of I-140s.
You filed your I-485 under the July 2007 Visa Bulletin. Six months have passed. Your employer is odious and you want to switch to a new job. Can you port your I-140 under AC21? Let’s examine your situation with questions I’ll pose and answer. Firstly, is your I-140 approved? If not, you’ll need to decide if your first employer who sponsored you has the ability to make you a valid job offer. If your first I-140 is approved, porting becomes much easier.
What? You’ve selected a new job? The new ported job has to be similar enough to be virtually identical. Both jobs, the one you’re leaving and the one you’re about to start, must have the same DOT code (for RIR or traditional cases) or SOC code (for PERM cases). The salary range offered in the underlying Labor certification must also be within a similar range. It is much better to have a copy of your original Labor certification and your I-140 approval or receipt notice.
What if my first employer, the odious one, withdraws the I-140? It’s not an issue if he/she does this at some point AFTER 6 months (180 days) past the filing date of the I-485.
Is it possible to port to a different geographical location? Yes.
Should the new employer have the ability to pay? Technically, the only factor that matters is whether the two employments are the same and similar.
What is the worst case scenario? If the I-140 Portability is denied for some reason, you can always retain the priority date of the old labor (original employment) for the adjustment under the umbrella of 8 C.F.R.204.5 (e). But you’d have to begin anew with a fresh PERM filing. The consequence of this is that if your 6 years of H-1B have ended, you might have to go back to your home country until you obtain your green card. If when you get there (your home country) you have been sentenced in absentia to live for a year in a large vat full of poisonous snakes, that would surely be a worst case scenario.
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