American Competitiveness in Twenty-First Century Act (AC21) was signed in 2000 to modernize the American immigration law regime as it applies to foreigners working in the USA.

Among multiple significant changes, the AC21 dramatically increases flexibility in H-1B visas and Form I-140 portability, allowing foreign workers space to change employers in certain situations.

Before enacting AC21, foreign nationals with H-1B visas had to leave the U.S. after being in H status for six years.

If they had an application of extension filed, the condition was that they had to be working for the same employer until their Green Card had been obtained.

With the enactment of AC21, foreign nationals can change employers or extend their H-1B status until there is a decision on their Adjustment of Status application.

In this post, we discuss how to change employers or job offers under the AC21 portability rule.

Changing Employers or Job Offers Under AC21 Portabilty Rule

As per Section 106(c) of the AC21 Act, an applicant for Adjustment of Status whose I-485 application has been pending for 180 days, or longer can continue the process for the obtainment of a Green Card.

This is possible even if they change their employer, provided that the new job is in the same or similar job classification.

Specifically, the change of employment for applicants with pending I-485 applications requires the following–

  1. The proposed change in employment must be in the “same or similar” classification
  2. I-140 form has been approved or is eligible to be approved when filed in concurrence with I-485
  3. Form I-485 must be pending for 180 days or more.

Importantly, AC21 poses no limitations on the number of times one can change employment, as long as one fulfills the above requirements.

Given that I-485 applications are seeing increasingly long periods of delay, it is indeed common for people to change multiple jobs in a period of pendency.

Provided one fulfills all criteria under AC21; one can change jobs multiple times.

Form I-140

An employer files form I-140 to the USCIS on behalf of a foreign worker.

The form is meant to petition the USCIS to allow an alien worker with specialized skills to work on a permanent basis.

Along with the I-485 form, it is necessary that an I-140 form has been approved or is about to be approved in order for a change in employer to be approved.

“Same or similar” occupation

An occupation that resembles in an ever-relevant way the job duties for which the underlying work visa application was approved is considered ‘same’.

On the other hand, an occupation that shares essential qualities and marked similarities on multiple factors with the employment for which the underlying immigrant worker visa was approved is considered ‘similar’.

The USCIS does not provide clear and precise tests to determine whether new employment is “same or similar.”

Generally, the new job descriptions are compared to the description in the I-140 form or new labor certification filed by the previous employer.

The Department of Labour assigns a code (typically six digits) to organize its Standard Occupational Classification System, called the SOC code.

This SOC code is often quite relevant to determining if the new job is in the same or similar occupational classification to the old one.

It is important to note that having a similar SOC code does not mean automatic approval. The USCIS performs qualitative analysis on a case-to-case basis.

Even with the same SOC code, the USCIS may find that the two jobs are not in similar or the same classification, although that is unlikely.

Some unofficial but helpful guidance in this regard is that for same or similar occupational classification, the jobs should require similar educational and training requirements and new proposed job position should not have a substantial salary difference.

Changes in salary or job description due to natural career growth or her employment shifting to a geographic location with a higher cost of living.

If the new employment is simply a promotion from the old one, USCIS finds it acceptable. The difference in salaries between the two jobs must not be very high. The USCIS accepts a difference in salary due to natural career progression or because of geographical change.

However, it is important to note that a promotion is not automatically acceptable- the USCIS still maintains the right to assess if the new job position is in the same or similar bracket. If one is in a supervisory capacity over workers performing roles that one was performing prior to promotion, it shall be considered favorable evidence.

180 day period of pendency

The 180 days are counted from the day of receiving. As per the AC21, the relevant period is I-485 “pending” for 180 days or more. An application is said to be “pending” from the date they are filed with the USCIS, which means that the days shall be counted from the date when the USCIS received the case.

A question that often arises is if one has an approved I-140, is it necessary for the I-485 to be pending for 180 or more days?

While leaving the employer before the completion of 180 day pendency period cannot be the sole reason to reject the I-485 application, the USCIS might issue a Request for Evidence to check whether the employment claimed is legitimate.

In such a scenario, it is extremely important to have the employer’s support because only they can provide the evidence required by the RfE. In the event that the employer refuses to provide said evidence, the I-485 can be denied.

Notify USCIS

The invocation of AC21 is automatic, i.e., by virtue of fulfilling criteria such as valid I-140 and moving to a similar or same job, one has invoked AC21.

However, USCIS is not automatically notified. Even though both the employer and the employee signs the forms, it’s the individual employee’s responsibility to notify the USCIS of the job change.

In cases where the affected party has not notified USCIS, and some problem is found with the I-140, the adjudicator is supposed to send a Notice of Intent to Deny. Once receiving this notice, one can inform the USCIS of the pending AC21 portability, but if one wants to deny this NoID process, one can file a notice with the USCIS beforehand.

After moving to a new job, timely notification to the USCIS is quite important. It is generally recommended that the USCIS be notified after starting to work with the new employer or in the new position. One can also notify the USCIS of being issued a Request for Evidence a Notice of Intent to Deny.

Legally, there is no difference between filing a notice after the reception of an RoE or NoID; the choice is mainly a logistical one.

Process of notifying USCIS

There are no regulations to implement the provisions of AC21. This means that there are no clearly specified legal requirements as to what, if anything, has to be filed when AC21 is used. There are no forms, applications, or petitions to file. The procedure to notify the USCIS is fairly simple.

The adjustment applicant needs to do the following:

  • File an I-485 Supplement J in order to request AC21 porting of I-485, Adjustment of Status Application
  • The request must be approved by the USCIS
  • File an AC21 notification to notify the USCIS that the AC21 requirements have been met.

Make sure that you have the time to prepare all the relevant documents prior to notifying the USCIS. Many applicants struggle to get a good employment verification letter from the employer which can negatively affect their application.

EAD or H-1B?

Employment Authorization Document (EAD) is issued to foreign nationals who are already in the U.S., allowing them to seek employment. On the other hand, H-1B is a class of visas issued to people who have received a bona fide job offer to work in US-based companies due to specialized skills.

The change in employment pursuant to AC21, pending approval of the I-485 application, is possible through both H-1B and EAD, but there are distinct differences.

If one is working under EAD while the I-485 application is pending, one would have to immediately leave the USA if the I-485 is rejected (however unlikely that may be).

After this, one would have to seek an H-1B extension before returning to the U.S. On the other hand, if one is working and staying in the U.S. under H-1B transfer, one can continue staying until the issues with the I-485 are resolved.

Travel Abroad

Generally, foreign nationals are allowed to travel abroad on Advance Parole d issued by their original employer while waiting for I-485 approval. AC21 portability would not affect the nature of allowances to those with the pending I-485 application.

Employees who have advanced parole document, which is not expired, shall be able to use it as usual once they have applied for AC21 portability. The immigration officers must be informed with honesty that one is no longer employed by the former employer but has applied for porting jobs in pursuance with the AC21. Generally, this would cause no problems.

H1B Extension Under AC21

Once the six year period is over, foreign nationals can ask for multiple yearly extensions. There is no cap on the number of extension applications that can be file.

To receive an extension, their Form I-140 or labor certification should be filed at least 365 days before the completion of the six year period.

However, if they already have an approved I-140 but the priority date is not current, they can apply for three year extensions.

Conclusion

AC21 has allowed significant streamlining in the framework regulating foreign workers. Furthermore, important allowances like Advanced Parole are made easier to retain while changing employment under AC21.

The job portability under AC21 is not a complex procedure and does not include heavy paperwork. With due care and timely action, one can avail of the benefits of AC21 very easily.

However, since procedures related to immigration are sensitive in nature, and timely filing is quite important, it is always preferable to have an experienced immigration attorney assisting instead of attempting to navigate the complexities of USCIS on one’s own.

How Can Herman Legal Group Help?

The U.S. immigration law is very complex, and the process of obtaining a green card can be very confusing. It is natural to feel stressed and anxious while doing it alone. This is why we are here to help.

Herman Legal Group has been providing quality legal services to immigrants and their families for over 15 years. With extensive experience in all aspects of immigration law, we can help you file your AC21 portability request and ensure that all the necessary documents are filed properly and on time.

Our experienced immigration attorneys will guide you through the entire process and ensure that your case is handled in the most efficient and effective way possible. Contact us today for a consultation, and let us help you obtain the best possible outcome in your case.

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