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Can I Use AC-21 Rule to Change Employer before I-140 Approval?

Hi William:

I filed I-140 and I-485 concurrently in the EB2 category based on PERM Labor Certification. Since the I-485 has been pending for more than 180 days, can I use AC-21 rule to change employer at this time before I-140 approval?   


The change of employer when the I-140 petition has not yet been approved is risky. One of the key problems includes the possibility of a Request For Evidence (RFE) on the I-140 petition. 

When the I-140 is reviewed, the USCIS can issue an RFE. Since the I-140 is filed by the employer, under current practices, the RFE is sent to the employer. Thus, even if the RFE addresses matters that involve the alien beneficiary, such as education and experience, it will be sent to the employer. If the employer does not respond, or responds stating the beneficiary is no longer employed by the petitioner, the I-140 will likely be denied. 

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