When navigating the U.S. immigration process, understanding how USCIS determines the validity of an I-140 petition is critical, especially when it has been concurrently filed with an I-485 adjustment of status application. Portability rules allow certain employees to change jobs without losing their place in the green card process, but USCIS closely reviews the underlying I-140 petition to ensure eligibility.
Understanding the I-140 Immigrant Petition
The I-140 Immigrant Petition is a cornerstone in the employment-based green card process. Filed by a U.S. employer on behalf of a foreign worker, the I-140 establishes eligibility for permanent employment-based residency. USCIS examines whether the I-140 petition meets all requirements, including proof of the job offer, the beneficiary’s qualifications, and compliance with labor certification if required.
I-140 Petition Requirements
To be valid, an I-140 petition must include:
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Proper documentation of the foreign worker’s education and work experience.
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Evidence that the U.S. employer can pay the offered wage.
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Labor certification approval if applicable.
USCIS may issue a Request for Evidence (RFE) if any documentation is missing or unclear. Maintaining a valid I-140 is especially important when the petition is used as the basis for a concurrent I-485 application or portability under AC21 rules.
Concurrent Filing of I-140 and I-485
Concurrent filing allows applicants to submit the I-140 petition and the I-485 adjustment of status simultaneously if their priority date is current. This can expedite the overall process but also adds complexity in the portability context. USCIS must confirm that the I-140 remains valid throughout the I-485 adjudication period, even if the beneficiary changes employers.
Portability Under AC21
The American Competitiveness in the Twenty-First Century Act (AC21) permits porting of an I-140 petition to a new job in the same or similar occupational classification. USCIS determines validity by verifying:
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Whether the I-140 was approved or is approvable.
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That the new position is in the same or similar occupational classification.
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That the I-485 has been pending for at least 180 days.
If these conditions are met, the beneficiary can continue the green card process with a new employer without restarting from scratch.
I-140 Premium Processing
For applicants seeking faster adjudication, I-140 premium processing can provide a response from USCIS in 15 calendar days. While premium processing does not change the requirements for I-140 validity, it offers clarity on whether the petition will be approved, which is crucial for portability decisions.
Maintaining I-140 Validity
Even after approval, it is essential to maintain documentation proving the I-140’s validity in case of audits or portability requests. This includes keeping copies of employment letters, approved labor certifications, and evidence of the ongoing job offer.
Conclusion
In summary, USCIS carefully reviews the I-140 Immigrant Petition when processing concurrent I-140 and I-485 applications. Ensuring the I-140 is valid, understanding portability under AC21, and utilizing premium processing options can significantly impact the green card journey.
