1. The Job Change after Form I-40 Petition and Form I-485 Application  

The immigrant visa retrogression creates lengthy delays in the Green Card process. The AC-21 portability is available to an individual who is the beneficiary of an approved I-140 petition and whose I-485 application has been pending at least 180 days. The benefits of AC-21 portability are available to a qualified individual, even if there is no an available visa number for his/her case. 

An USCIS memo on AC-21 Act issues specifically states that AC-21 portability remains available to an I-140/ I-485 applicant who is impacted by retrogression. As long as the person had an approved I-140 and previously filed the I-485 when the priority dates were current and that I-485 remains pending, one does not need to have a current priority date in order to change jobs under AC-21 Act. 

Some I-485 applicants may be retrogressed for several years, particularly those in the EB-3 classification, the ability to change jobs may be very useful in allowing individuals to progress in their careers or to find new employment in the event of a layoff. As with any major decision, it is important to be aware of the potential risks involved before changing jobs. 

Any I-140 applicant, whether impacted by retrogression or not, should be aware that if the petitioning employer revokes the I-140, this can cause complications, possibly including a denial of his/her I-485 application. While the revocation of an I-140 petition by the employer should not cause a denial after one becomes eligible for AC-21 portability, the procedures applied sometimes create problems.

The USCIS stated that if a sponsoring employer revokes an approved I-140 petition after the I-485 application has been pending for 180 days or longer, and there is no notification on file that the foreign national is using AC-21 portability, the USCIS must then issue a Notice of Intent to Deny (NOID) the I-485. In order to prevent the USCIS from issuing a NOID, it is generally advisable for the applicant to notify the USCIS of the job change under AC-21 Act as soon as possible. 

2. The Form I-140 Petition without PERM Labor Certification

The following situations may obtain form I-140 petition approval without a Labor Certification:

• Aliens of Extraordinary Ability in Business, Sciences, Arts, Education, or Athletics; An alien can apply for a green card without a sponsoring employer;

• Outstanding Professors/Researchers; Individuals who enjoy international recognition as outstanding academics;

• International Executives or Managers;

• Exceptional Ability in the Sciences, Arts, Business with a "National Interest Waiver"; If the services of a professional would be of a national interest to the United States, the professional can apply for a green card without a sponsoring employer;

• Registered Physical Therapists;

• Registered Professional Nurses;

• Family Immigration: Special consideration is given to the immediate family members of U.S. citizens. For applications by family members other than spouses, minor children, and parents, this process may take years.

• Asylum: Persons who are in the United States, and legitimately fear returning to their country of origin as a result of persecution based on their race, religion, or membership in a political or social group, may qualify for special consideration. Economic hardship or suffering will not support a request for asylum. Absent exceptional circumstances, a person must request political asylum within one year of arriving in the United States. If political asylum is granted, the applicant may remain in the United States and may eventually obtain permanent residence 

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