Dr. William:

I filed the NIW based I-140 and I-485 applications concurrently, and both I-140 and I-485 applications have been pending for more than 180 days. Because my I-140 is not approved yet, may I take the advantage of AC21 portability to change employer at this time?

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Answer:

If your I-140 application is not approved, you may not be able to take the advantage of AC21 portability based on the current USCIS policy. Although the AC21 law itself only requires that the I-485 have been pending for at least 180 days, and does not require that the I-140 petition be approved for the I-485 applicant to enjoy portability, the USCIS position is that the I-140 petition should be approved first to an applicant to take the advantage of AC21 portability.

 

 

 

 

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