AC21 Portability And Retrogression
This article originally appeared in Murthy Bulletin (www.murthy.com) on March 3, 2006.
Portability Applies to I-485 Applicant without
Current Priority Date
AC21 portability is generally available to an individual who is the
beneficiary of an approved I-140 and whose I-485 has been pending at least
180 days. The benefits of AC21 portability are available to any otherwise
qualified individual, even if there is not an available visa number for
his/her case. As explained in our May 27, 2005 MurthyBulletin
article, Yates May 2005 Memo on AC21 and
I-140s, a USCIS memo on AC21 issues specifically states that AC21
portability remains available to an I-485 applicant who is impacted by
retrogression. As long as the person had previously filed the I-485 when the
priority dates were current and that I-485 remains pending, one does not
need to have a current priority date in order to change jobs under AC21.
Given that some I-485 applicants may be retrogressed for several years,
particularly those in the EB3 classification with recent priority dates,
this ability to change jobs may be very useful in allowing individuals to
progress in their careers or to find new employment in the event of a
lay-off. As with any major decision, it is important to be aware of the
potential risks involved before changing jobs.
AC21 Allows Multiple Job Changes
An applicant whose I-485 adjudication may be delayed by several years as the
result of retrogression could be in the situation of having to change jobs
not just once, but multiple times. The question of whether one may take
advantage of AC21 portability more than once and still obtain the green card
approval is neither addressed in the AC21 law, nor in any USCIS policy
guidance. It would appear that, provided the basic requirements for AC21
portability are met, one would be eligible to change jobs or employers
multiple times pursuant to AC21. Based on our experience to date at the
Murthy Law Firm, the USCIS seems to agree that porting more than once is
acceptable and allowed under AC21. Potentially, this could be restricted via
regulation or policy memo, however.
AC21 requires as well that the applicant have a permanent (non-temporary)
job offer as the underlying basis for the green card approval. If one has a
history of bouncing from job to job, this could raise questions as to
employment stability and whether the individual has a qualifying, permanent
job offer. Therefore, when there is a choice with regard to changing jobs,
employment stability and the potential for longevity with the new employer
are valid concerns.
Salary Considerations for the New Job
Attorneys in our firm are frequently asked about the impact of a difference
in salary when changing jobs under AC21. We are also asked what "same or
similar" really means in order for one to be eligible under AC21
portability. USCIS policy memoranda, particularly the May 12, 2005 Memo
referenced above, have been quite favorable on these matters. However, in
that same memo, the USCIS stated that the forthcoming AC21 regulations "may
take a more restrictive position than this memorandum." Therefore, while
issues such as salary differences do not appear to be problematic at
present, foreshadowing indicates that this could change when the regulations
are released at some future date.
When explaining the risk of potentially stricter AC21 regulations to I-485
applicants, we are frequently asked, "If I change jobs under AC21 and the
regulations are released after that, they won't apply to me, right?"
Unfortunately, this is not correct. While it is not possible to predict the
content or effective date of any future regulations, they will likely apply
at the time of adjudicating the I-485 application, and not just when the job
change occurs. In a hypothetical example, if new regulations were to limit
the percentage of acceptable salary difference, or prevent multiple portings,
the officer adjudicating the I-485 could decide that the job change violates
the regulations, even if the change occurred months or years before the new
regulations were issued.
I-140 Revocation and its Impact on Green Card
Finally, any AC21 applicant, whether impacted by retrogression or not,
should be aware that if the petitioning employer revokes the I-140, this can
cause complications, possibly including a denial. While the revocation of an
I-140 petition by the employer should not cause a denial after one becomes
eligible for AC21 portability, the procedures applied sometimes create
The USCIS stated in an
August 4, 2003 memo that, if a sponsoring employer revokes an approved I-140
petition after the I-485 application has been pending for 180 days or
longer, and there is no notification on file that the foreign national is
using AC21 portability, the USCIS must then issue a Notice of Intent to Deny
(NOID) the I-485.
In order to prevent the USCIS from issuing a NOID, it is generally advisable
for the applicant to notify the USCIS of the job change under AC21 as soon
We at the Murthy Law Firm,
however, have seen cases where, despite prompt and timely AC21 notification,
the USCIS still erroneously has issued NOIDs. Since it is common for a NOID
to have only a 30-day deadline for response, this must be filed promptly.
Thus, if the NOID is not sent to the correct address or there is some other
problem preventing a timely response, the case likely will be denied. While
the denial sometimes can be overcome, this is obviously a serious problem
that possibly requires filing a Motion, which can be draining both in terms
of finances and the mental and emotional toll taken on the affected parties.
At the Murthy Law Firm, we are aware that the USCIS has mistakenly denied
the I-485 in some instances after the I-140 has been revoked by the original
sponsoring employer. At such times the USCIS should have just issued a NOID.
While a denial due to USCIS error can normally be addressed in a Motion to
Reopen, it is obviously never a good situation, especially if the applicant
and/or the family members do not have a backup nonimmigrant status, such as
H1B or H-4. Without the backup status, each I-485 applicant will be
immediately out of status upon issuance of the denial. Often all employment
cards are no longer valid once the I-485 is denied, as well, causing an
additional financial toll on a family.
Conclusion - Deciding Whether or Not to Use AC21
While certain risks do exist in using AC21 portability, it remains a very
useful option for those impacted by retrogression and needing or wanting to
change jobs. We have been guiding both individuals and employers wishing to
take advantage of the portability provisions under AC21 since it came into
effect. An overwhelming majority of I-485 applicants working with our firm
have successfully obtained the green card simply by taking advantage of
AC21's portability provisions.
Before one changes jobs, we remind our readers that it is prudent to weigh
potential risks against the benefits, and to assess one's backup plans
before making this important decision. Because of the complexities involved
and the ever-changing nature of AC21 guidance, it is also advisable to
discuss the specifics of one's unique situation with an immigration lawyer
who has considerable experience with AC21 cases. Ultimately, the decision
will come down to one's comfort with a certain level of risk, and the depth
of her/his desire (or need) to change jobs or employers. The Murthy Law Firm
is available to those who may need guidance or help in notifying the USCIS
of their decision to take advantage of AC21's portability provisions.
(c) MurthyDot.Com. Reproduced with permission.
About The Author
Murthy Law et. al consists of over 45 full time attorneys, paralegals, and support staff, who provide excellent service in the area of U.S. Immigration Law to clients worldwide. The Murthy Law Firm handles cases ranging from Fortune 500 companies, mid-sized and small companies, to individuals who are undergoing the U.S. immigration process.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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