Changing Employer Using AC-21 Portability Rule

Effective October 17, 2000, the American Competitiveness in the Twenty-First Century Act (AC-21) provides that approved I-140 petitions for an employment-based green card would remain valid even when an alien changes jobs, if:

• An employment-based Adjustment of Status (I-485) has been filed and remained unadjudicated (pending) for 180 days or more; and
• The new job is in the same or similar occupational classification as the job for which the certification or approval was initially made.

If an alien has complied with the above statutory requirements, adjudicators shall not deny applications for an adjustment of status on the basis that the alien has changed jobs. Under present practices, it is expected that an I-485 applicant notify the U.S. Citizenship and Immigration Services (USCIS) service center when they no longer intend to enter into employment with the employer who sponsored them on the I-140 petition. The USCIS would continue to expect the applicant to submit a letter notifying the USCIS of this change in intent. If the adjudicator has reason to believe that the applicant’s intent has changed, a Request For Evidence (RFE) may be issued to clarify the applicant’s intent in regards to employment.

In an instance where the applicant no longer intends to be employed by the employer who sponsored him/her on the I-140, the USCIS would request a letter of employment from the new employer. The letter from the new employer verifying that the job offer exists should contain the new job title, job description, and salary. This information is necessary to determine whether the new job is in the same or similar occupation and to determine whether the alien is admissible under the public charge ground of inadmissibility.

Similar Job

What exactly ‘similar’ means is not very clear is subjective. To determine whether a new job is in the same or similar occupational classification as the original job for which the certification or approval was initially made, the adjudicating offer would consult the Department of Labor‘s Dictionary of Occupational Titles, its online O*NET classification system, or similar publications. These sources are somewhat vague in defining jobs, especially so in the IT industry. The DOT is quite outdated and it contains no definitions for many IT jobs, such as System Administrator. The safest thing to do is to change jobs whose title and description almost exactly match the job under which the green card was originally filed. Even if the job title is not the same, as long as the job duties are the same or similar, you are fine. e.g., if you were .NET programmer earlier and if you accepted a job in Java programming now, your job duties are essentially still the same. You are still a programmer, and not a cook.

Counting

The 180-day duration starts from the receipt date of the I-485 and not the notice date. In other words, the date when the USCIS received your application and not the date when they printed a receipt.

Pending I-140

The AC-21 rule states that the green card application would remain valid if the applicant changes employer after 180 days of I-485. When an I-485 is filed concurrently with an I-140, it has been more than 6 months since the I-140 was pending, and the employee changes the employer, as long as the I-140 gets eventually approved, the applicant can still utilize the AC-21 rule.

Intent

In employment-based I-485 applications, the I-140 petitioning employer is required to maintain its intent to employ the petitioned employee upon approval of the I-485. In case an employee changes employers under the AC-21 rule, the new employer should retain such intent to employ the I-485 applicant for an indefinite duration once the I-485 is granted. Also, an employee should retain his/her intent to work indefinitely for the new employer at the time he/she takes new employment and throughout the period of employment with new employer. If either the employer or employee abandons such intent, the USCIS may deny the I-485 application; once granted, theoretically, the USCIS might be able to revisit the adjudication of the I-485 and initiate revocation processing.

Never Employed by Petitioner

It is possible for an alien to qualify for the 180-day portability even if she/he had never been employed by the prior petitioning employer or the subsequent employer under AC-21. However, there must be evidence of a bona fide offer of employment, and the employer must have had the intent at the time the I-140 petition was approved.

Withdrawal/Revocation of I-140

If an I-140 is withdrawn or revoked before 180 days, then the I-140 petition is no longer valid and cannot be ported to a new employer, even after 180 days under the AC-21 rule. If an I-140 petition is withdrawn after 180 days, the employee can still utilize the AC-21 rule. Earlier, in order to substitute the labor certification for another employee, it was necessary to first withdraw a previously approved I-140 for a previous employee. However, since July 2007, labor certification substitution is not allowed, and employers have little reason to withdraw an I-140 petition.

If the I-140 is withdrawn by a previous employer but the beneficiary has failed to file evidence of a new qualifying employer before that time, the USCIS must issue a Notice of Intent to Deny (NOID) I-485. If the qualifying new employment is then timely submitted, the USCIS may consider the approved I-140 valid for the purpose of a continuous adjudication of the I-485 even after the Notice to Deny had been issued. It is thus critically important that people either file the change of employer as soon as the employment change takes place or if the Notice to Deny is received, they respond to such Notice “timely” (within 30 days) and with “required evidence.” If the Notice is not timely responded, the USCIS will deny the I-485.

New Job Eligibility

You can either get a new job using your EAD or by having the new employer file your new H1 visa. Consider the pros and cons of an EAD/AP vs H1 before deciding which one to use. Even if you have run out of 6 years on your H1 visa, it may be possible to get an H1 visa for beyond 6 years.

Geographic Location

The new job does not have to be in the same geographic area and can be anywhere in the U.S.

New Job Wages

As long as the wages in the new job are on par with the job duties and supporting enough that you will not become a “public charge”, and the new job duties are similar to the original job, the new employer does not have to pay the wages listed in the original labor certification or even the prevailing wages. Wages can be more or less. Wages depend upon a lot of factors such as the job location, company benefits, bonus, current economy, etc. Of course, if the wages are too different, the USCIS may consider that the two jobs are no longer similar and could potentially create a problem.

Multiple Job Changes

Even though you can change your job multiple times using AC-21, it is not advisable to do so unless absolutely necessary. When the priority dates are backed up a lot, it may be necessary for some people to change jobs multiple times.

Procedure for Utilizing AC-21

There are no prescribed forms for utilizing the AC-21 rule. When you join a new employer, have them send an employment letter (sample below) with the details that the current job is similar to the previous job. In case the USCIS issues a Notice Of Intent to Deny (NOID) because they didn’t have a chance to look at the previous employment letter yet, send another employment letter at that time, within 30 days.

Changes with the Same Employer

You should consider utilizing AC-21 provisions if:

• Your job location changes to a different geographical location and the original labor certification was for a particular job location.
  
• Your job duties change, as long as the new job duties are similar to the previous job duties.
  
• Your salary changes (increases or decreases).
  

Priority Date

When utilizing AC-21 provisions, the priority date does not have to be current, as long as all other conditions are met as described above.

Samples:

• Sample employment letter (New employer)
  


• Sample cover letter from an employee
  


• Resignation Letter (Previous employer)