Approved i140<180 days , pending i485 >180days


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Hi,

I have just received my EB3 i-140 approval (filed concurrently with i-485 in October 2020), but my i-485 (>180 days after filing) is still pending along with i-765 (so I don't have my EAD yet).

If a new job opportunity presents itself (in same or similar position - of course) , can use AC-21 portability to switch jobs?

I know that AC21 allows i-485 pending for >180 days to file i485J, however my concern is approved i-140 less than 180 days and what if my current employer tries to withdraw/revoke it after switching the job.

Please advise. Greatly appreciate your response. 

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  • 1 month later...

I am not a lawyer but the way I read the Policy Manual as available on USCIS website, once you have pending I-485 for greater than 180 days and your I-140 is approved, you are good to go. https://www.uscis.gov/policy-manual/volume-7-part-e-chapter-5

The concern is valid as we know from the "Final Rule" as of Jan 2017, once I-140 is approved for at least 180 days, "withdrawal" doesn't effect AOS application and we try to put it together with the current situation we are facing. That rule was specifically written by the administration of the time, to extend AC21 benefits as much as possible after extrapolation the way the law is stated. But, once I-140 is approved, after AOS pending for greater than 180 days, one doesn't have to wait for another 180 days. I-140 sure is subjected to be withdrawn by the Employer A if the I-140 was approved less than 180 days ago, but AC21 supersedes and AOS stays pending. Worst case, USCIS may give a NOID but filing I-485J at the time with bonafide job offer in "same or similar job occupation" will clear the air and AOS remains in good shape and pending until done.

If, during that time, one is job less is another concern. Then the story changes completely. Hope it helps!

 

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