AC21 Portability - Change Jobs with Pending I-485
AC21 contains two important provisions that allow:
- Change of jobs before I-485 (Green Card) is approved; and
- Extension of H-1B beyond the 6-year limit (discussed here).
AC21 has offered much needed relief to many immigrants in the past, and is even more critical now. Hundreds of thousands of people were able to file I-485 applications under the July Visa Bulletin of 2007, but are facing severe visa retrogression for the coming years. AC21 makes it possible to start a new career when needed or desired, before green card is approved.
AC21 Portability Requirements
The American Competitiveness in the 21st Century Act (AC21) permits an individual to seek new employment when the following conditions are met:
- New employment must be the "same or similar" occupational classification;
- Form I-140 has been approved, or is approvable when filed concurrently with I-485;
- Form I-485 has been pending for at least 180 days.
Note that AC21 does NOT specify:
- The new job must be in the same geographic location; or
- The new job must pay the same or a higher salary; or
- A new labor certification must be filed.
Important: USCIS has not published final regulations governing AC21. Service centers and field offices have been operating under the guidance of several interoffice memos. As a result, there are still some gray areas that need further clarification. More importantly, USCIS may change its interpretation of the law and take a more restrictive position in the future.
What exactly does "Same or Similar" mean?
To be eligible for AC21, your new employment must be the "same or similar" occupational classification to the one described in initial Form I-140. There is no clear definition of what constitute "same or similar," but a USCIS adjudicator will consider the following factors:
- Job Description: your job duties of the new employment will be compared with the job descriptions contained in your I-140 or labor certification (ETA 750A or new PERM).
- DOT code and/or SOC code: Your DOT code or SOC code assigned to the I-140 based on your labor certification, or an appropriate code determined by the adjudicator if LC was not required, will be used to judge whether the new employment is the same or similar occupational classification.
- Wage information: your new salary should not be significantly different from the previous one. However, it doesn't have to be exactly the same or necessarily higher.
May I still use AC21 if I left my employer before the 180-day mark?
It is possible. The fact that you have left your previous employer prior to your I-485 pending for 180 days is not the basis, by itself, for denial of your portability case. The reason is that adjustment of status is based on prospective employment, rather than an existing one. However, it is still a high-risk move. Your case will be denied if any of the following happens:
- Your I-140 is withdrawn by your employer before your I-485 reaches 180 days; or
- Your I-140 is denied by the USCIS at any time; or
- Your approved I-140 is revoked at any time, except when it is based on a withdrawal request from your employer (not fraud related, for example) submitted after your I-485 has been pending for 180 days; or
- You fail to prove that a bona fide employment relationship existed at the time of filing. So leaving too early obviously makes it more difficult to establish your case, especially if your employer is no longer willing to cooperate.
Am I supposed to notify USCIS after changing jobs under AC21?
You should, to avoid any potential headaches. If an adjudicator has no knowledge of your using AC21 portability, and there is something wrong with your I-140 (revoked, for example), he or she is required to issue a Notice of Intent to Deny (NOID) your I-485. There have also been cases when applicants responded to NOID with necessary documents to prove their eligibility for AC21, but their cases were still denied. Although it is not difficult to reopen such a case with further explanation, it can be a real hassle and waste of time.
Is there an AC-21 form I can use to notify USCIS?
No, USCIS does not provide an official AC-21 form. Instead, you or your attorney should send a letter to the USCIS service center explaining that you have invoked AC-21 portability provision. Since there is no AC21 application or petition to file, hence no formal instructions, you may decide what supporting documents to send with the letter, such as your job offer, to demonstrate your eligibility.
My employer isn't happy, can they do something to my I-140?
Yes, because an I-140 is the property of your employer, not yours. However, there is not much an angry employer can do if 1. the I-140 has already been approved; AND 2. your I-485 has been pending for more than 180 days.
Otherwise, there are three scenarios where your employer may be able to ruin your case:
- Withdraw the unapproved I-140 before your I-485 reaches 180 days;
- Ignore an RFE regarding the unapproved I-140 even if your I-485 has been pending for 180 days or more;
- Revoke the approved I-140 before your I-485 reaches 180 days
How to calculate the 180 days for AC21 eligibility?
First of all, it is referring to calendar days, not business days. Secondly, the clock starts with the "Received Date" of your I-485 application, as indicated in your receipt notice.
May I use AC21 portability multiple times or only once?
Neither AC21 act nor USCIS memos addressed this issue specifically. Based on the wording of the law, it appears that as long as you meet the eligibility requirements each time, you should be able to port your I-140 more than once. There indeed were reported cases that USCIS approved I-485 applications despite multiple job changes. However, USCIS may issue new guidance on this subject in the future that is different from their current practice.
It is worth mentioning that frequent job changes may raise concerns of an adjudicator regarding the "permanency" of your job offers. Although you would have no choice when facing lay-offs or a company shut-down, you should be aware of the negative impacts of "job hopping."
Does my new job needs to be in the same city or region?
No. A May, 2006, USCIS Memo from Yates specifically stated that geographic location of the new employment does not have to be the same as specified in the approved Labor Certification and initial Form I-140, as long as it is the same or similar occupational classification.
Do I have to have the same job title?
Not necessarily. USCIS understands that different companies may use different titles for essentially the same position, and will make a determination on a case-by-case basis. However, it makes everyone's life easier if you have identical job titles.
What if my new job pays less?
The Yates Memo (2005) explained that a difference in the wage offered on the approved labor certification, initial I-140 and the new employment cannot be used as a basis of a denial, as long as the case meets occupational classification requirement. However, a significant discrepancy in salary may be a factor in determining whether the new job is "same or similar."
Does my new employer have to prove "Ability to Pay?"
USCIS will not request proof of "ability to pay" from your new employer. However, they may issue RFE to verify the legitimacy of your new employer, as well as your job offer. While adjusting your I-485, USCIS will also evaluate the potential of you becoming a public charge. So it is essential that your new employer has relevant materials ready, which may include the same documents required as proof of "ability to pay."
Is a new labor certification (LC) required for AC21 portability?
No. Your already approved LC remains valid even if you seek to adjust your status based on another employment opportunity.
Future AC21 regulations
As mentioned earlier, USCIS may publish new AC21 regulations in the future. And it is impossible to predict the scope, contents or effective dates of those regulations. This uncertainty further complicates an already risky process of changing jobs with pending I-485. Although AC21 remains a very useful tool, perhaps the only option sometimes, it is critical to consider the potential risks before proceeding with AC21.
Important USCIS or INS Guidance on AC21:
- AC21 Neufeld Memo - May 30, 2008
- AC21 Aytes Memo - December 27, 2005
- AC21 Yates Memo - May 12, 2005
- AC21 Yates Memo - August 04, 2003
- AC21 Cronin Memo - June 19, 2001
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