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Can I Use AC-21 Rule to Change Employer before From I-140 Approval?

Hi William:

I filed Form I-140 and Form I-485 concurrently in the EB2 category based on PERM Labor Certification approval. Since the Form I-485 application has been pending for more than 180 days, can I use AC-21 rule to change employer at this time before the Form I-140 approval?

Answer:

The change of employer when the Form I-140 petition has not yet been approved by USCIS is risky. One of the key problems is the possibility of a Request For Evidence (RFE) on the Form I-140 petition which may be issued by USCIS. 

When the Form I-140 is reviewed, the USCIS can issue an Request For Evidence (RFE). Since the Form I-140 is filed by the employer, under current practices, the RFE is sent to the employer. Thus, even if the RFE addresses matters that involve the alien beneficiary, such as education and experience, it will be sent to the employer. If the employer does not respond, or responds stating the alien beneficiary is no longer employed by the petitioner, the Form I-140 petition will likely be denied. 








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