(Article Reviewed on 26 June 2015)
What is AC21 Portability?
In the context of AOS (I-485), this is that provision of law which permits an employment-based AOS applicant whose I-485 has been pending for more than 180 days and whose I-140 has been approved to change jobs anywhere in USA to same or similar job describe in their green card application.
There is a lot to discuss, but I am focusing the answers to the questions I most frequently encounter. I will continually edit this blog note with additional information as we go long.
What is AC21 Portability?
In the context of AOS (I-485), this is that provision of law which permits an employment-based AOS applicant whose I-485 has been pending for more than 180 days and whose I-140 has been approved to change jobs anywhere in USA to same or similar job describe in their green card application.
There is a lot to discuss, but I am focusing the answers to the questions I most frequently encounter. I will continually edit this blog note with additional information as we go long.
Let me begin with a question being asked for this Thursday’s community call (I host a community conference call for all of you folks who need it twice a month). The question has been posted here:
http://www.immigrationportal.com/sho...d.php?t=280372
Qo. If I use AC21, Is it necessary to inform USCIS? It is not mentioned anywhere in the new AC21 guide lines. If so how may I do it?
Answer. There is no law that requires us to notify CIS if you change jobs using AC21 portability (Don’t forget to file Form AR-11 for change of address, if you are changing residences as well). But let us look at the pros and cons of informing or not informing.
If you do inform CIS, are you not inviting unnecessary scrutiny? Probably yes. But so far the process has been very smooth and safe for hundreds (if not thousands) of our clients. There are several legal/factual issues in assessing whether the jobs are same/similar, but that is not what I addressing here. If the jobs are suited for AC21, informing CIS may cause some delays but they should not be excessive or fatal to your AOS.
If you do not inform CIS, you could have serious problems, which though rare, are serious enough for us to be cautious. I have seen cases where employers withdrew their I-140 after an employee left them. USCIS, in contravention of its regulations, revoked the AOS and placed the AOS applicants in deportation. I am simplifying the facts, but this is what can happen. We end up spending time and money in going before an immigration judge to show that we are in fact entitled to AOS and CIS has acted illegally and irresponsibly.
Further, if you do not inform CIS, a red flag can be raised when you file for naturalization, five years down the line. Natz. Adjudicators have raised the question why you have not worked with the sponsoring employer.
Bottom-line, whether to inform or not inform is a highly individual decision, unique to each case of the client.
How do I inform CIS?
There is no prescribed form for this. We send in a letter to CIS with an offer of employment from the future employer.
Qo. Do we have to wait for a Response from USCIS informing the AC21 has been accepted or denied to take the new job?
Ans. CIS does not respond. You do what you need to after sending in the AC21 letter.
Denial of AC21
Qo. Also, I heard in your conference call earlier today (June 19) that once the AC21 is invoked and it is denied the person is immediately out of status and could be asked to leave the country?
Ans. Correct. Unless you have a simultaneous H/L type status, you would be in that situation.
When Does the Eligibility Begin
Qo. When does 180 days counting start, i.e. if 140 and 485 filed concurrently, is it 180 days after 140 approval or 180 days after 485 filing?
Ans. It begins from the date of the fling of the 485, but begins to be counted only after I-140 is approved.
For example, let us look at the following scenarios:
Scenario – 1
You file an I-140 and 485 today. Your I-140 gets approved after 100 days. You now have only 80 days more to wait for portability eligibility.
Scenario – 2
You file an I-140 and 485 today. Your I-140 gets approved after 180 days. You can port any time because your I-140 is approved and your I-1485 has been pending 180 days.
Scenario – 3
You file an I-140 and 485 today. Your I-140 gets denied after 300 days. You cannot port because if an I-140 is not approved, there can be no portability.
AC21 for Spouse
Qo. My husband got his GC approved in July, 2007. As his spouse, based on his application, I could add my name for i-485 only in July 2007, about same time he got his GC approved. That time I was working on H1B visa.
Last month I lost my job, and so lost my H1B status. So now, I would be in status of AOS or i-485 pending. Now I've got new job and want to join the job on EAD.
Would I've to file AC21, before joining this new job?
Ans. You do not have to file AC21. You are not the principal applicant for I-485. You should be fine.
FAQ
Here are some more questions asked of me for AC21:
Qo1. What if I got query for 485 while it is pending? Do I need to get support from old or future employer?
Ans1. While it is always a good idea to maintain a good relationship, I do not see any need for help from the old employer as long as you have a copy of your I-140 approval, 485 receipts and labor certification application (ETA 750 or 9089). From the future employer, you should just need a letter describing job, title, salary and some other facts.
Qo2.What documents are needed to file AC-21?
Ans2. Just what I have described in Qo1. above.
Qo3 Does the salary and Job description be the same as current or is it OK to be different?
Ans3. Job description must be same or similar. If the salary is too far apart from the salary offered in the labor certification, you could have an issue. Discuss this with your lawyers.
Qo4. Will taking a County/Govt job speed up the process of 485?
Ans4. No.
Qo5. Is there any charges to pay USCIS and to your office to file AC-21?
Ans5. There is nothing to be paid to government and of course we charge additional fees for AC21 processing. The legal fees include all EAD and AP renewals and cover you to the end of your GC, unless you choose to do another portability to another employer.
Qo. 6 (Added 5 March 2009)
If I want to use EAD for changing jobs, will I be out of status if I don't have a job for more than a month?
Ans. No. USCIS so far has adopted a policy that only if they send you an RFE, your then current status will be questioned. In between what you did or did not do is not that relevant. So let us say you leave the old employer. You do not have a job for 6 months. Then you get a "similar" job. The week after you get the job you receive an RFE. You will be fine because now (or by the time you respond to the RFE), you have a similar job.
Added 7 April 2009
Qo. Do I have to file a new I140 with my new employer if my employer withdraws his I-140 (don't know why be he said he will be doing it as his company policy) as part my AC21 filing process.
Ans. For AC21, you do NOT have to file another I-140 even if the old employer revokes the existing I-140.