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Change of Employment Before 180-day of EB-485 Filing and Its Affect on I-140 / EB-485 Applications

4/24/2007

The USCIS AC-21 Memorandum addressed the issue of changing of employment for the alien who filed concurrent I-140/EB-485 and changed employment before reaching 180 days.

It states that the I-140 and EB-485 should not be denied solely on this basis inasmuch as it is established that the I-140 was filed concurrently with the I-485, the I-140 petition had the intent to employ the alien beneficiary, and the alien must also have intended to under the employment upon approval of I-485 application.

Accordingly, the memo warns the adjudicators that they should not presume absence of such intent and take the I-140 and supporting documents themselves as prima facie evidence of such intent. They should rather issue RFE in appropriate cases or investigate the issue when it is warranted.

However, following final decision of the USCIS prior to reaching 180 days of EB-485 application will lead to denial of the concurrently filed EB-485 applications: the petitioner withdraws the I-140 petition before reaching 180 days of EB-485 filing, or

USCIS denies or revokes the I-140 petition. The same will apply even after 180 days of EB-485 filing. However, the petitioner's withdrawal of petition after 180 days of EB-485 filing will have no effect on the portability of I-140 petition and no effect on the adjudication of EB-485 applications.




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