Immigration e-Bulletin November 2004

This is a continuing series of monthly e-Bulletins issued by the Law Office of Lea Ling Beh. The information in this e-Bulletin does not constitute advice and should not be construed as legal advice. It is for general information only. If you have any questions specific to your case, please consult an attorney.

The focus of this edition is on the adjustment of status questions (adjusting from H-1B status to permanent residence status). The questions below are some of the more relevant ones that face some of our readers.

My employer has recently announced layoffs in its workforce as part of its cost cutting measures. I am one of the unlucky ones. I am now concerned about my green card application which is sponsored by the employer. The HR Department told me that the company will withdraw the I-140 even though it has been approved and I am just waiting for the adjustment of status application. Does that mean that I will have to apply all over again when I find a new employer willing to sponsor me?

This question relates to the portability provision of the petition filed by the employer for your permanent residence, which is commonly called the I-140. In addition to the I-140, the employer would also have filed the I-485, which is the application to adjust your status from non-immigrant (for example, from H-1B or O visa) to immigrant (green card).

In the past, any changes in employment affected the validity of the petition as well as the underlying labor certification, both of which were filed by the sponsoring employer. The I-140 could not be transferred to another employer. However, with the enactment of the American Competitiveness in the Twenty-First Century Act in 2000 (commonly referred to as the "AC21"), changes in employment (layoffs, change in employers) will not affect the validity of the I-140 if certain requirements are met. For the I-140 to be portable, (1) the petition (I-140) must be approved; (2) the adjustment application (I-485) must be pending for 180 days or more; and (3) the beneficiary must have a job offer that is in the same or similar job classification as the initial job offer. Also, the new employer must show its ability to pay at least prevailing wage in the area of intended employment.

In your case, the withdrawal of the approved I-140 by your employer will result in the issue of a Notice of Intent to Deny the pending I-485 by CIS. If your I-485 is pending for 180 days or more, you have to produce the necessary evidence to show that you meet the portability requirements outlined above. If your I-485 is less than 180 days, it is likely that the I-485 will be denied even with evidence of a new employment. You will therefore have to file a fresh application with a new employer.

I am on H-1B status and my employer has sponsored me for the green card. The I-140 and I-485 have been filed and still pending approval. I need to travel home to see my elderly parents. I am told that I need to apply for travel documents from the CIS before I leave so that I may be allowed to re-enter and will not lose my adjustment status. Is this true?

While it is true that most adjustment of status applicants must apply for travel documents (they are called "Advance Parol") in order to travel out of the country and not lose their adjustment status, this is not required of applicants who have a valid H-1B status. You will be admitted based on your H-1B status provided you can show that (1) you intend to resume employment with the same employer for whom you have been authorized to work under the H-1B visa; (2) you are in possession of a valid and unexpired H-1B visa; and (3) you are in possession of the original I-797 receipt showing that your adjustment of status application has been filed.

This e-Bulletin is published by the Law Office of Lea Ling Beh, Esq.

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