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发帖数: 372 | 1 (c) Validity after Revocation or Withdrawal .
Pursuant to the provisions of section 106(c) of the American Competitiveness
in the Twenty-First Century Act (AC21), Public Law 106-313, the approval of
a Form I-140 employment-based (EB) immigrant petition shall remain valid
when an alien changes jobs, if:
· A Form I-485, Application to Adjust Status, on the basis of the EB
immigrant petition has been filed and remained unadjudicated for 180 days or
more; and
· The new job is in the same or similar occupational classification as
the job for which the certification or approval was initially made.
If the Form I-140 has been approved and the Form I-485 has been filed and
remained unadjudicated for 180 days or more (as measured from the form I-485
receipt date), the approved Form I-140 will remain valid even if the alien
changes jobs or employers as long as the new offer of employment is in the
same or similar occupation. If the Form I-485 has been pending for less than
180 days, then the approved Form I-140 shall not remain valid with respect
to a new offer of employment.
Accordingly, if the employer withdraws the approved Form I-140 on or after
the date that the Form I-485 has been pending 180 days, the approved Form I-
140 shall remain valid under the provisions of §106(c) of AC21. It is
expected that the alien will have submitted evidence to the office having
jurisdiction over the pending Form I-485 that the new offer of employment is
in the same or similar occupational classification as the offer of
employment for which the petition was filed. Accordingly, if the underl ying
approved Form I-140 is withdrawn, and the alien has not submitted evidence
of a new qualifying offer of employment, the adjudicating officer must issue
a Notice of Intent to Deny the pending Form I-485. See 8 CFR 103.2(b)(16)(i
). If the evidence of a new qualifying offer of employment submitted in
response to the Notice of Intent to Deny is timely filed and it appears that
the alien has a new offer of employment in the same or similar occupation,
the USCIS may consider the approved Form I-140 to remain valid with respect
to the new offer of employment and may continue regular processing of the
Form I-485. If the applicant responds to the Notice of Intent to Deny, but
has not established that the new offer o f employment is in the same or
similar occupation, the adjudicating officer may immediately deny the Form I
-485. If the alien does not respond or fails to timely respond to the Notice
of Intent to Deny, the adjudicating officer may immediately deny the Form I
-485.
If approval of the Form I-140 is revoked or the Form I-140 is withdrawn
before the alien’s Form I-485 has been pending 180 days, the approved Form
I-140 is no longer valid with respect to a new offer of employment and the
Form I-485 may be denied. If at any time the USCIS revokes approval of the
Form I-140 based on fraud, the alien will not be eligible for the job
flexibility provisions of §106(c) of AC21 and the adjudicating officer may,
in his or her discretion, deny the attached Form I-485 immediately. In all
cases an offer of employment must have been bona fide, and the employer must
have had the intent, at the time the Form I-140 was approved, to employ the
beneficiary upon adjustment. It should be noted that there is no
requirement in statute or regulations that a beneficiary of a Form I-140
actually be in the underlying employment until permanent residence is
authorized. Therefore, it is possible for an alien to qualify for the
provisions of §106(c) of AC21 even if he or she has never been employed by
the prior petitioning employer or the subsequent employer under section 204(
j) of the Act. | j**i
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