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ASK VISALAW.COM
by Marc Topoleski, Partner in SSHD's Detroit, Michigan office.
My Labor Certification and I-140 petition have been approved, but I was recently laid off.  Can I transfer my approved I-140 petition to my new employer or will I need to re-start the Green Card process from the beginning? 

If your Adjustment of Status application (I-485) has been pending for more than 180 days you are eligible to go work for another employer as long as you will be working in a position that is substantially similar to the position in your original petition.  However, if your I-485 has not been pending for more than 180 days, you will need to begin the Green Card process over with your new employer, starting with the filing of a new Labor Certification.  In this scenario, you would be able to carry over the priority date from your original Labor Certification filing for you subsequent Green Card application.  
  
I got an H-1B visa approval notice for Company A, but I have not yet started working for Company A.  Can I start working for a different Company B under the new portability provisions immediately after Company B files an H-1B visa petition for me?

The new H-1B portability provision provides that an individual can start working for a new employer immediately upon the filing of a nonfrivolous H-1B petition by the new employer as long as the individual had previously been issued an H-1B visa or otherwise accorded H-1B visa status.  The individual also must be in a period of authorized stay at the time the new H-1B petition is filed, and have never worked without authorization, to be eligible for portability.  Due to the fact you were previously issued an H-1B visa for Company A, you arguably should be eligible to start work with Company B under the portability provision, even though you never worked for Company A, as long as you are present in the US in some lawful status at the time Company B files your petition. 
  
If I file an immigrant petition or labor certification now to take advantage of the temporary restoration of Section 245(i), do I have to later adjust status in the same category for which I petitioned? 
No.  Regardless of the category of your initial petition or labor certification, you do not need to adjust status in that same category to retain 245(i) benefits if you later qualify for a green card through another category of lawful permanent residency status.  For example, if you initially file a family-based immigrant petition before April 30, 2001 through a sibling that is a US citizen, your petition could take over 20 years before it is approved.  However, if after filing this initial petition, you later become eligible to file an immigrant petition based on a higher preference family relationship, an offer of employment, or even through the green card lottery, you would still be eligible for Section 245(i) benefits at the time you adjust status to this subsequent immigrant category.  However, you should note that if you adjust your status based on an immigrant petition that was not the original basis for your Section 245(i) eligibility, you may have to use the priority date of the subsequent petition.