Frequently Asked Questions: 180 Day Portability Rule
Q. Is it the receipt date or the notice date that governs the counting of the 180-day period under AC21?
It is the receipt date that governs the counting of days. AC21 speaks in terms of the I-485 pending for 180-days or more. Applications are pending from the time they are filed with the USCIS. It is therefore the day that the case actually was received by the USCIS that governs; not the date that the USCIS generated the receipt notice.
Loss of Employment after Filing I-485, before I-140 Approval Risky
Q. I lost my job before the I-485 had been pending 180 days. Can I still use portability?
It can be attempted; however, one of the major concerns in a layoff situation is the I-140. If the I-140 has been approved, then the concern is whether the employer will withdraw it before the 180-day point. The I-140 must remain intact until the I-485 reaches the 180-day point. Alternatively, if the I-140 has not been approved, there is still the possibility of using AC21, but it is much riskier.
There are some key concerns in this situation. If one is laid off, it is best to get input from an experienced immigration attorney to address status maintenance and the preservation of any possible benefits from the prior green card filing. Often, it is best to file a new green card case as a backup, even if it is potentially possible to pursue a pending green card case.
Never Worked for GC-Sponsoring Employer – Potential Fraud
Q. I never worked for my “green card” sponsoring employer. It was a future job offer. Can I use AC21 portability?
Yes, one potentially could do this, but it could raise questions of whether the initial job offer from the labor certification-sponsoring employer was valid or bona fide. Employment-based green card applications are all based on the concept of a future job offer. Therefore, there is no legal requirement to work for the sponsor at the time of filing the labor certification (LC), or even while the I-140 or I-485 is pending. The best proof that a job offer is valid, however, is working for the sponsor. Thus, filing a case as a future job offer, without working for the sponsor, then using AC21 to move to an alternative position, can raise questions of intent and potential fraud or misrepresentation. The safe approach is to avoid this scenario by working for the sponsoring employer.
New Job Can be “Similar” but Differ in Some Respects
Q. My new job has a different title, but the same basic duties as the job described in the labor certification. Will that work?
In our experience, yes. The AC21 determination is governed by duties of the job rather than the job title, as job titles often differ between companies, even for very similar positions. The AC21 law uses the terminology “same or similar job classification.” The Legacy INS June 2001 guidance refers us to the U.S. Department of Labor system of occupational classification as a guideline. The later May 2005 Yates Memo makes the same references. The duties listed for the original job offer should be compared with the job duties of the new position to determine within which category they fall. The DOL categories are generally fairly broad. In many situations, therefore, this does not present a significant problem. It is important to note that the duties generally govern, and not specific technologies, in most cases.
Risk if Employer Revokes I-140 Petition before I-485 Pending 180 Days
Q. I am afraid that, if I change my job, my employer will try to harm my green card case. What are the risks?
The employer does not control the I-485 application, since this is filed directly by the foreign national. The I-485 is based on the I-140, however, which is the employer’s filing. The employer can always withdraw or request to revoke the I-140 petition. If the I-140 petition has been approved, and the I-485 has been pending for 180 days, the employer can still request to revoke the I-140 petition approval. This does not prevent the case from being approved, however. An approved I-140 petition remains valid, once the I-485 application has been pending for 180 days, even if the employer requests the revocation of the I-140 petition. In that situation, if the foreign national has not provided information about the new job, then the USCIS will issue a Notice of Intent to Deny (NOID). If a NOID is issued, a response must be filed demonstrating eligibility under AC21. If the file contains documentation about the new job, the case should just continue being processed.
Even if the I-485 has been pending 180 days, it is quite risky if the I-140 has not been approved. Under the 2005 Yates memo, there are still possibilities for approval, but many pitfalls remain. One of the primary potential problems arises if an RFE is issued. At that point, many employers either will not respond or will withdraw the I-140 petition, risking the entire case.
Sponsoring Employer has no Obligation to Revoke I-140 after Employee Leaves
Q. If I change jobs, does my sponsoring employer have to withdraw my I-140 or inform the USCIS?
No. Unlike the H1-B, there is no requirement for the employer to notify the USCIS of termination of the employment or withdraw the I-140 petition. Many employers do not withdraw I-140s upon employment termination. This is particularly true after July 16, 2007, since it is no longer possible to file labor certification substitution cases. In labor certification substitution cases, the employer was required to revoke the previously approved I-140 for the original beneficiary in order to substitute a new beneficiary. Thus, employers had a valid reason for revocation in some instances. Now, there is often no reason to revoke an I-140.
Wage Difference between Original LC and New Position/Job
Q. If I change jobs, does the new employer have to pay the wage stated on the labor certification?
No. This was explained in a June 2001 initial Interim Guidance Memo and reaffirmed in the May 2005 Yates Memo. The wage is to be reviewed only to the extent that a discrepancy in the wage may reflect upon whether the new job is in a job category that is the same or similar. Additionally, the wage is relevant to demonstrating that the individual will be self-supporting and will not become a “public charge.”
We note that, at The Anwari Law Firm, we have seen many instances of significant changes in wages that still meet the AC21 requirements. These changes include both raises and salary reductions. Virtually identical jobs may substantially vary in terms of pay. Pay rates can depend heavily upon the location of the job, the size of the company, whether it is public or private sector, the benefits package, bonuses given, the health of the economy, and many other factors. The USCIS, however, has mentioned that a great variation in salary or pay could indicate that the job duties are not similar and this could pose a potential problem in some cases.
Same Geographic Location Not Required for New Position/Job
Q. Does the new job have to be in the same geographic location?
No. This was set out in the June 2001 Interim Guidance, and confirmed in the May 2005 Yates Memo. There are no geographic limitations on the new employment position under AC21.
Method of Notifying USCIS on AC21 Change of Employer / Job
Q. How do I exercise the portability provisions? What do I have to do?
AC21 is a law that does not have regulations implementing its provisions. As such, there are no specific 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 initial guidance makes reference to an expectation that the USCIS be notified. This expectation has been reiterated in later guidance memoranda.
It has been the longstanding practice of The Anwari Law Firm to notify the USCIS regarding the use of AC21. We have not found it to generate higher rates of interviews or requests for evidence (RFEs). The value of such notifications has been confirmed over time. We find that, in most cases, it is the safest approach. Our strategy for new clients with AC21 cases is to take over representation in the I-485 and act as the attorney for the remainder of the case. Included in our work on the case is a notification of the use of AC21, along with proof that the case qualifies under the AC21 requirements.
Promotion / Transfer with Current GC-Sponsoring Employer Generally Allowed
Q. Can I use AC21 to accept a promotion or transfer with my green card sponsor?
Yes. AC21 does not require that one leave the sponsoring employer. It gives additional flexibility to the individual and the employer to permit promotions or other job changes within the company. These promotions or job changes can be used to continue the same green card case under AC21, as long as the new job meets the same or similar job classification requirement.
EAD to Use AC21 Portability Not Required
Q. Do I have to use an EAD to use AC21?
No. While many change their employers using the Employment Authorization Document (EAD), this is not the only way to make this change. The new employer could file an H1B extension for an eligible individual, and the H1-B could be used to work on the new job. This is often possible even after the expiration of the individual’s 6-year H1B period, since, under a USCIS opinion letter, the law permits extensions beyond the 6-year limitation with employer “B” based on a qualifying green card case previously filed with employer “A.”
Q. Can I change jobs more than once using AC21?
Yes. AC21 does not contain any limitations regarding multiple job changes. Many who have filed their I-485 applications have or will experience years of waiting time for visa number availability due to retrogression. This extended duration of the I-485 pending period increases the chances that individuals may want or need to undergo more than one job change. It may be best to discuss potential issues that could be created by frequent or repeated job changes in the AC21 context.
We have all learned a lot about AC21 since it became law in October 2000. There have been USCIS memos clarifying many details, as well as many cases through which we have gained valuable insight into the USCIS’s interpretations and applications of AC21. Many recent applicants are anxiously counting the days from the filing of their I-485s, awaiting AC21 eligibility. Some employers may experience the loss of valuable employees; other employers, perhaps offering better employment terms and conditions, may find that they are able to hire needed foreign workers without having to sponsor their green cards.