2. Ask Visalaw.com

If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can't answer every question, but if you ask a short question that can be answered concisely, we'll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

1) QUESTION:

My company filed an I-140 immigrant petition in the EB3 category for me and it was approved several years ago. My I-485 application for adjustment of status was filed in 2007. In 2007, my company was purchased by another company, so a new I-140 petition was filed by the new owner. I am still in the same position as before the company was purchased. The new I-140 petition has not been approved yet.

Now, I have an offer of employment with a different company and I want to know if I can move my I-140 petition and I-485 application over to the new employer under the AC21 law, or do I have to wait for the new I-140 to be approved?

Also, when I move to the new employer should I send USCIS a letter telling them that I am moving my I-485 application? I am afraid that if I don't they will send a Request for Evidence (RFE) for my I-485 application to my old employer?

ANSWER:

The American Competitiveness in the Twenty-First Century Act (AC21) created the ability to "port" your I-485 application for adjustment of status (green card application) to a new employer where: 1) the I-485 has been pending for more than 180 days; 2) the I-140 employment-based immigrant petition has been approved or was approvable as of the day that your I-485 had been pending for 180 days; and 3) you will be working in the same or similar occupational classification. You should be eligible to port now without waiting for the new petition to be approved. You have an approved I-140 petition. Your I-485 application has been pending for more than 180 days. As long as your position with your new employer is the same or similar to your position with your old employer, then you meet all the requirements for porting your I-140 petition and I-485 application to your new employer. I would suggest that you meet with a qualified immigration law attorney before you switch employers to get their opinion of whether the new position is the same or similar to the old position.

As to your second question, there is no requirement to notify USCIS that you are porting. If USCIS sends you a Request for Evidence (RFE) on the I-485 then you would notify them that you are now with a new employer and show that the new position is the same or similar to the old position. That being said, in a situation where the I-140 petition has already been approved, I see no harm in sending USCIS notice that you have ported to a new employer. You should consult with an immigration lawyer about the pros and cons of sending notice to USCIS where the I-140 petition has not been approved.

You should know however, that sending USCIS notice that you have changed employers will not result in them sending future notices to your new employer. The I-485 application is filed by you, the beneficiary. Any correspondence from USCIS regarding the I-485 application should be sent to you at the address you provided on the form. A copy of all correspondence should also go to your attorney, if you had one file your application for you and they submitted a Form G-28 Notice of Appearance as Attorney This is one of the added benefits of using an attorney. An RFE for the I-485 application should not go to your employer unless you gave your employer's address as your mailing address on the I-485 form. If you change your address, you can inform USCIS of your new address by calling the National Customer Service Center at 1-800-375-5283 (the number is listed on your receipt notice) and filing a Form AR-11 Change of Address, which is an on-line form located on the USCIS website. You must do both to ensure that USCIS actually changes your address in their system. If an RFE is issued on an I-140 that is still pending, the RFE will still go to your old employer even if you send in notice that you have moved to a new employer.

2) QUESTION:

I am a U.S. citizen who is now living in Israel. I was married to an Israeli citizen but now we are divorced. My daughter is a U.S. citizen and has a U.S. passport. When the time comes to renew my daughter's U.S. passport, will I need him to sign the application?

ANSWER:

Applications for new U.S. passports or passport renewals for children 15 or under require both parents to apply in person with the child. This is true even if one or both of the parents are not U.S. citizens. If one of the parents is unable to apply in person with the child (for example if they are living in a different country), the non-appearing parent must complete a Form DS-3053 Statement of Consent and include a copy of their passport.

If the non-appearing parent cannot or will not sign the Statement of Consent, the appearing parent may complete the Form DS-3053 and include a statement as to the special circumstances why the non-appearing parent is not submitting a Statement of Consent. The DOS may then, in their discretion, grant the passport without the non-appearing parent's consent, depending on the reason for the omission.

If the appearing parent has sole legal custody of the child, then a Statement of Consent is not required. In that situation the appearing parent can provide one of the following documents instead:

• Minor's certified U.S. or foreign birth certificate listing only the applying parent
• Consular Report of Birth Abroad (Form FS-240) or Certification of Birth Abroad (Form DS-1350) listing only the applying parent
• Court order granting sole custody to the applying parent (unless child's travel is restricted by that order)
• Adoption decree (if applying parents is sole adopting parent)
• Court order specifically permitting applying parent's or guardian's travel with the child
• Judicial declaration of incompetence of non-applying parent
• Death certificate of non-applying parent

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