AC-21 Portability for Pending I-485 Petitions

AC-21 Portability for Pending I-485 Petitions

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.

* The new job does not have to be in the same geographic location

* The new job does not have to pay the same or a higher salary

* A new labor certification is not required.

About the “Same or Similar” position Requirement:

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 750 or PERM).

SOC code: The 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.

Using AC21 if leaving your employer before the 180 days:

The fact that you have left your previous employer prior to your I-485 pending for 180 days is not the basis for denial of your portability case since adjustment of status is based on prospective employment, rather than an existing one.

However your I-485 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Your I-140 is withdrawn by your employer before your I-485 reaches 180 days; or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.

Notifying USCIS after changing jobs under AC21:

It is recommended that you notify USCIS after changing jobs under AC21.

If an adjudicator has no knowledge of your using AC21 portability, and there is something wrong with your I-140 (revoked, for example), the adjudicator is required to issue a Notice of Intent to Deny (NOID) your I-485.

Notify USCIS after changing jobs under AC21 usually leads to a faster approval of the I-485.

Can my employer withdraw the approved I-140?

Yes, because an I-140 is the property of your employer, not yours. However this will not affect your ability to port to a new employer as long as your I-485 has been pending for more than 180 days.

Calculating the 180 days for AC21 eligibility:

The 180 days is based on calendar days (not business days). The clock starts with the “Received Date” of your I-485 application, as indicated in your I-797 receipt notice.

Using AC21 portability multiple times:

As long as you meet the eligibility requirements each time, you are able to port your I-140 more than once.

Note 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.”

Is the new job required to be in the same geographic location?

No, but it is required to be in the same or similar occupational classification. This means same or similar job title and job duties.

Does my new employer have to prove “Ability to Pay?

USCIS will not request proof of “ability to pay” from your new employer but 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.

These include company tax returns or audited financial statements.

Please use the form below to contact us with any questions about the AC-21 portability process or to schedule a consultation:

-------------------------------------------------------------------------------------- Disclaimer We do not provide legal advice from this web site. At no time do we review your answers for legal sufficiency, draw legal conclusions, provide legal advice or apply the law to the facts of your particular situation.

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