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I-485 Portability- By Indu Liladhar-Hathi |
| By:Indu Liladhar on Fri 07 Mar 2008 3:41 PM under Immigration |
Q 1) My current employer filed concurrent I-140 petition on July 29, 2007 based on the certified labor certification application. The petition has since been approved. As of today, I may be eligible for AC 21 portability since my I-140 has been approved and 180 days have passed since I filed EB-485 on July 29, 2007. Unfortunately, the employer’s business is going downhill and I am not sure whether the company can pay me the H-1B salary in the future. Since my service is very important for the company’s business, the company is not willing to let me go to take a new employment that meets the threshold of AC 21 portability. Currently, I am represented by the company lawyer. What happens if I just port to new employment?
A: Under the AC portability provision, the employer’s withdrawal or revocation of approved petition will have no impact on the pending EB-485 application. inasmuch as the alien has ported properly meeting all the legal thresholds. However, there is one precaution you will have to take in the event that the employer turns hostile. From the USCIS perspectives, your company lawyer remains the attorney of record for your I-485 proceeding and all the communication including RFE will be directed to the company lawyer without your knowledge. Worse yet, had the employer filed G-28 on your behalf in filing your EB-485 without a legal counsel, all the communication will be directed to your employer. Since the communication from the agency is critically important in that it usually has to be responded within a given and short period of time, you can be critically hurt. As far as the company lawyer is concerned, even though the lawyer is in dual legal representation situation, they face a conflict of interest in representing both the employer and yourself. Accordingly, the company lawyer should withdraw the legal representation of you once you leave the job in a hostile environment by filing the legal representation withdrawal notice with the agency, but a lot of company lawyers often neglect to do it and place himself or herself in predicament when they receive communications about your I-485 applications because of the conflict of interest. Accordingly, unlike the friendly separation from the employment, when the employer does agree to your departure, it may be prudent to retain a new lawyer who will then quickly file substitution of legal counsel for you so that all the communication of the agency be directed to the new lawyer. When you do not hire a lawyer, you should still give a notice of termination of the company legal counsel and ask the agency to direct all the communication to directly to yourself. Additionally, it may be prudent in such hostile separation that you file a notice of AC 21 porting proactively and quickly with the Service Center so that they handle your case properly and continuously without issuing a notice of intent to deny I-485 application, EAD, and AP based on the employer’s withdrawal. They are required to take such action as the agency was not aware that you had ported under the ACT 21 Act and under the circumstances of non-portability situation, the employer’s withdrawal of the approved I-140 petition should lead to denial of I-485 application unless you submit AC-21 porting evidence in response to such NOID. In the latter situation, you are creating an unnecessary risk in that things can go wrong in many ways. For instance, some employers and their company lawyers do not give a copy of the labor certification application and I-140 petition, not to mention the approved labor certification and the approved I-140 petition. Since AC 21 porting requires that the new employment must be in the same or similar occupational classification, porting without a copy of these legal documents can result in taking dissimilar occupational classification which is different from the labor certification application jobs, and consequently the change of employment could turn out to be a mistake.
