Question: My I-140 was approved in May 2006, and my I-485 is still pending since July 2007. I have been working with Company A since 2003, and in January 2011 I moved from Indiana where I lived since 2003, to California. I still work for Company A in same position and with same salary. Do I have to move back to Indiana to get my green card or can I stay in California?
Answer: Yes, a labor certification (PERM) application IS location specific. But, based on your fact pattern, it sounds like you are eligible to port your I-140 to the California position under AC-21 section 106 (c). If so, you are not required to return to Indiana.
This I-140 portability provision allows an approved or pending I-140 immigration petition filed on behalf of a foreign national [under EB-1-2, EB-1-3; EB-2; EB-3] categories to remain valid if (1) the foreign national’s adjustment of status application has been filed and remained un-adjudicated for 180 days or more; and (2) the foreign national changes job or employers and the new job is in the same or similar occupational classification.
Further, there is a December 27, 2005 Aytes memo which indicates that an I-140 beneficiary may benefit from I-140 portability when seeking employment in a geographic area [whether city, country or state] different from the one in which the employment described in the relevant labor certification [PERM] application or immigrant petition was to take place.
Alternatively, if you determine you are not eligible to port under AC-21, then your employer may either confirm their intention to employ you in Indiana upon issuance of the green card; or start a new California based PERM application on your behalf.
Please let me know if I may be of further assistance.
Michael Ryvin, Partner
Ryvin Wallace Group