The U.S. District Court for the District of Columbia recently issued an opinion which states USCIS is within its rights (not a violation of the Administrative Procedures Act) to deny applications for adjustment of status based on a pending I-140 Petition, even after the I-485 petitions have been pending for at least 180 days and portability has been requested.
Most of us are familiar with AC21 portability which gives aliens the ability to move or “port” their entire green card case to another employer, provided they have an I-485 that has been pending for at least 180 days and they are moving to a position that is the “same or similar” to the position listed on their approved labor certification. In Ravulapalli v. Napolitano, the Plaintiffs ported their permanent residence cases to a new employer while the I-140 and the I-485s were pending. The I-140 employer withdrew the I-140 Petition and based on the withdrawal, USCIS denied the I-485 applications even after portability. The Court determined that when portability is requested prior to I-140 approval, USCIS is within their right to review the I-140 for whether it was approvable at the time of filing. If it was not approvable at the time of filing, the I-140 and I-485s can both be denied, even after portability to a “same or similar” position.
It is our continued recommendation that clients do not attempt portability based on a pending I-140 Petition. We recommend using AC21 portability only when an I-140 has been approved and I-485 applications have been pending for at least 180 days. Please contact the Hammond Law Group if you have any questions about porting your pending case to a new employer.