With many applicants filing (or having filed) adjustment of status (I-485) applications, mainly in the EB-2 India and China categories, and due to the fact that there are many I-485 applicants who are hoping to switch jobs, our office has handled numerous AC21 green card porting cases. Many I-485 filers have or will soon be eligible for porting their I-485 green card process to a new employer because their I-485 has now been pending for more than 180 days. As a result, we seek to remind some folks that their I-485 may be portable to a new employer, for a same or similar job, and to provide some guidance and clarifications on the main rules and options for porting one’s I-485 green card application to a new employer under AC21.
The American Competitiveness in the Twenty-First Century Act of October 2000 (AC21) provides in section 106(c) that an adjustment of status applicant who has an I-485 application pending for 180 days or longer is able to continue with the green card process even after s/he has changed employers, as long as the new job is in the same or a similar job classification.
Specifically, AC21 permits an individual to transfer, or “port”, his or her green card process to a different employer if (1) the new job is the “same or similar”, (2) Form I-140 has been approved or is approvable when filed concurrently with Form I-485, and (3) Form I-485 has been pending for at least 180 days.
Should I Invoke AC21 and Notify USCIS?
AC21 happens automatically. In other words, by meeting the AC21 requirements (e.g. switching to a different employer and by working in a “same or similar job”) the individual has successfully taken advantage of green card portability provisions of AC21. However, USCIS does not know that the individual has changed job. As a result, it is best to notify USCIS of the job change and to inform USCIS that AC21’s requirements have been met. Filing an Ac21 notification with USCIS helps avoid problems in the future and, as of November 2017, it also creates an “affected party” right of notification.
If a USCIS adjudicator has no knowledge of an individual using AC21 portability, and there is something “wrong” with the Form I-140 (revoked, for example), the adjudicator is required to issue a Notice of Intent to Deny (NOID) the pending I-485. There have been cases when applicants responded to NOID with necessary documents to prove their eligibility for AC21, and 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.
Another reason for invoking AC21 proactively is to preempt an RFE in cases where there is also a change of address. While not officially confirmed by USCIS, in some cases when there is change of address, in addition to change of employer, USCIS gets a notification of this address change (due to the requirement that a Form AR-11 must be filed with USCIS). In some cases, USCIS has been issuing RFEs on the pending I-485 applications seeking information relating to AC21.
In addition to preempting an RFE, as discussed above, another reason for filing AC21 notice is the opportunity to change the attorney of record on the I-485 case. Often the I-485 is filed by an attorney of the former employer and after the employee departs, the former employer’s attorney may not be motivated to share very quickly with the employee any correspondence from USCIS, including time-sensitive RFE/NOIDs.
Update (8/18/2016). Another reason to proactively invoke AC21 and inform USCIS of the new employer sponsor is the string of 2015-2016 Appeals Court cases which have established a notification right of new AC21 sponsor employers in connection with I-140 revocation of an earlier petition by a former employer. See details.
Update (12/7/2017). Another (very strong) reason to proactively invoke AC21 proactively is the November 2017 Policy Memorandum which entitles a properly-ported AC21 beneficiary to certain rights in the event of I-140 revocation proceeding. See details.
If I Decide to File AC21 Notification, When Is the Best Time To Do So?
Generally, there are two opportunities to file AC21 notification. One is shortly after the individual starts his or her employment with the new employer. The second one is if there is an RFE or NOID issued by USCIS. Recognizing that there may not be an RFE or NOID issued at all, the question becomes whether it is worth spending the time (and money) to prepare and file AC21 shortly after starting the new job.
From our practice, there are certain distinct advantages to filing AC21 upon starting a new job, as opposed to doing so after receipt of a RFE/NOID:
- You will control the timing of preparing and filing the AC21 documents — you will have time and be able to carefully prepare the documents required by the employee and your employer will have time to prepare a good employment verification letter. On the other hand, if you wait for RFE/NOID, you will most likely be under a 30-day filing window to prepare and file the RFE/NOID response and rushing the preparation and filing of the documents will affect their quality and ultimately your case will not be presented as well as it could have been.
- Your employee/employer relationship is likely to be very good – your employer is not likely to object to providing an employment verification letter soon after you start work. On the other hand, if you wait for an RFE/NOID and the employer has grown unhappy, there is a strain on the employer/employee relationship or if the employer’s business is not doing well, it may be more difficult to ask for and obtain an employment verification letter.
- You can change the attorney of record on your I-485 — if your former employer’s attorney is the attorney on record for the I-485, it is good idea to change the attorney of record as early as possible. As indicated above, your former employer’s attorney may not be motivated or willing to share with you promptly time-sensitive correspondence from USCIS, including RFE/NOIDs. Having your own attorney receive and address such correspondence as early as possible is important.
How “Similar” Should the New Job Be?
Another critical question in connection with AC21 is whether a new proposed job position is “same or similar” for purposes of complying with AC21 and meeting its requirements.
Generally, a new job should be in the same job classification as the job for which the approved immigrant petition was filed. For example, an adjustment applicant working as Computer Analyst, where the PERM/I-140 were filed for Computer Systems Analysts (SOC code 15-1051.00) classification should be able to switch to a new job which fell under the same classification – 15-1051.00.
In a teleconference on this subject, the Nebraska Service Center (NSC) has provided some unofficial but helpful guidance on their reasoning and practice when adjudicating AC21-related cases. NSC was asked to provide some guidance as to their criteria in adjudicating the “same or similar” job standard. In response, NSC confirmed that the “same or similar” has not been a significant issue because NSC has been applying a “common sense” approach – NSC has confirmed that most petitions invoking AC21 portability based on similar occupations are indeed usually similar, i.e. accountant doing another accounting position, IT consultant working in the IT field. On the other hand, IT worker making “slurpees at the 7-Eleven” would not be considered to qualify under AC21.
While this conference call and the information about the “common sense” approach NSC takes with respect to AC21 review does not state the official USCIS position, it nonetheless provides a helpful insight into the operations and standards at NSC. Also, it should serve to provide some relief and flexibility to the thousands of I-485 adjustment applicants who are seeking to switch jobs but when the new proposed jobs are not exactly similar to the jobs for which they were initially sponsored.
A salary discrepancy between the sponsored job and the AC21 job is also reviewed by USCIS — but the focus is to determine whether a substantial salary increase is cause by the passage of time, natural career growth or moving to a higher cost-of-living area (all of which are okay). On the other hand, if a substantial salary discrepancy cannot be explained on some of these factors, it may suggest that the AC21 job is not “same or similar”. In cases where there is substantial salary difference, an AC21 package should address the factors contributing to this salary increase.
Should H-1Bs Be Transferred or EAD Should be Used for Employment?
It should be noted that the analysis with respect to AC21 portability discussed herein does not necessarily depend on whether a new job is taken pursuant to EAD (based on the pending I-485 application) or pursuant to an H-1B transfer. There are many case-specific factors which may affect the decision whether to work under EAD or H-1B — however, if all things are equal, we normally recommend that a new job be taken pursuant to an H-1B transfer.
The reason is that we recommend that foreign nationals who are I-485 applicants (and may otherwise be able to work using EAD) continue working and staying on the U.S. pursuant to H-1B status. This way, in the event (however unlikely it may be) of an I-485 denial, the foreign national would be able to continue staying and working in the U.S. while the I-485 issues are addressed. On the other hand, if one is employed with an EAD and the I-485 is denied, then this person (and family members) may need to leave the U.S. immediately, obtain H-1B extension (if possible) and H-1B stamp before being able to return to the U.S. — a situation which is certainly undesirable to employer and employee.
Another common two-part question we receive from current and prospective clients who are expecting visa number and have used AC21 to switch employers and are no longer with the original employer is 1) whether they can travel abroad using advance parole (AP) document issued when working with the former employer and 2) what should they respond, upon return, when questioned by a border agent about their employment situation.
First, it is worth reiterating the point made in the previous paragraph that it is better to continue working and traveling using H-1B (or L-1, as applicable) while waiting for I-485 approval and after changing employers under AC21. Second, there is one major rule which warrants repeating – be frank and honest with the immigration or border officers. These are highly qualified professionals who are trained to detect evasive, misleading, or false answers and if caught in a material misstatement, the consequences may be very significant.
AC21 was intended to address exactly the kind of situation to which the two-part question above applies. After completing an AC21 switch of employers, the employee can freely continue his or her green card application and avail him- or herself of all of the benefits of pending green card adjustment of status application – including advance parole and EAD. Thus, employees who have properly pending adjustment of status and unexpired advance parole document from a former employer can travel abroad and re-enter with such advance parole document with no issues.
Many clients are nervous to answer the question whether they are still employed by the sponsoring employer when, in fact, they are not. However, the AC21 process is intended to address this kind of situation and we urge foreign nationals, who are asked this question upon their return to the country, to answer truthfully and explain to the border agent that they have done an AC21 transfer.
Some immigration attorneys advise against filing anything in connection with an AC21 job transfer. However, we do advise our clients who switch jobs under AC21 to file a notification with USCIS (as discussed above). The added benefit of this is that the employee has a letter documenting the AC21 transfer and which letter briefly explains the law and the circumstances of the AC21 transfer. Having such letter and presenting it to the border agent upon re-entry is a nice way to deflect a skeptical border agent of the propriety of the AC21 job transfer.
As many I-485 applicants are now becoming (or will soon be) eligible for AC21 porting to a new employer, we hope that many would first consider the pros and cons of AC21, as discussed in this article, before jumping ship to a new employer. There are significant issues and questions to be addressed before AC21 eligibility is confirmed — and considering that many, especially in EB-2 China and India, may have a long wait before their priority date becomes current, a decision to invoke AC21 is very important.
Our office is happy and available to assist with AC21 case analysis and with invoking AC21. Please do not hesitate to contact us or consider our consultation options. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.