AC21 AOS Portability

AC21 is the name given to a law that provides for several matters including the ability to change jobs while an employment-based green card is pending (I-485 AC21 portability) and to start working for an H-1B employer as soon as transfer petition is filed with the USCIS.

I-140 Revoked after AC21 Portability

Question details

<b>From our community member </b><p>
<b>Here is my Situation.</b><p>

I used to work for Employer "A" who filed for my EB3 Labor and I-140. I-140 was approved in Feb 2007. In July 2007, when the dates became current, I filed for my I-485. In December ending of 2007, which was around 180 days after filing the I-485, Company "A" was acquired by Company "B", at that time I got an email from my employer HR indicating that Company "B" will now take over all immigration responsibilities of "A" and no H1 transfers or re-filing of I-140 is required. I was also assured that since my I-485 was pending for 180 days and i had EAD and 6 pay slips / one per each month from company "A" , there should not be
any issues, since AC21 can be applied too, in this case. So I continued to work for Company "B" for about 1 year from Jan 2008 to Jan 2009. I received pay checks from "B" during this period.
In Feb 2009 I joined a direct client, Company "C" on H1B. Got the H1B approval beyond 6 years, using company "A" I-140 approval copy. Company "C" Attorney sent AC-21 documents to USCIS. Company "C" does not file labor or I-140 they do only H1B or hire on EADs but does not do green cards. Now, after more than 7 years of I-140 Approval from Company "A", I came to know that USCIS, has revoked the I-140 of a different employee who was in the similar situation as me, but he didn't had H1B and he was forced to leave USA since his I-485, EAD and Advance Parole were all based on this I-140. It seems USCIS said the underlying Labor and I-140 were fraud. Hence everything is denied. He did leave the country.
<b>My Question : </b>
What are my Options if something like this occurs for my case too? I understand its hard to tell if this will occur or not. Company "A" which filed my I-140 no longer exists and I have no contact what so ever with Company "B". If I-140 gets revoked for fraud by the company "A", will the employee be held responsible? Can this kind of adverse decision be appealed and during appeal process what happens to the status.
Are we allowed to stay and work in the country when this case is in progress? I was reading online about the "The case, Kurapati vs USCIS”, this lawsuit is similar in nature. Is there a ray of hope with this? <p>You’re Suggestions/Comments please.

See clip from Attorney Rajiv S.

Dec 18, 2014 Free US Immigration Community Conference Call with Attorney Rajiv S. Khanna (Every Other Thursday)

Immigration Law

Substantial transcription for video

We discussed: Working concurrently with H-1 cap exempt and quota employers, immigration issues if we have a special needs (cerebral palsy) child, applied B-2 to main status while F-1 is expiring, Section 245(k) and illegal work, DETAILED DISCUSSION OF I-140 REVOCATION IMPLICATIONS INCLUDING AC21, impact on H-1 of reentry on advance parole, Section 13 green card for diplomats, who can co-sponsor affidavit of support I-864, proving cross chargeability, transfer of priority dates for a future job approval

Obama's Immigration Action, Discussion with Attorney Rajiv S. Khanna

Substantial transcription for video

For updates, see my blog page on Obama's Immigration Action.

Takeaway points for legal immigration from President Obama’s executive action: 

1.      USCIS is “about to” publish the final rule on H-4 work authorization.  That will make it possible for certain spouses of H-1 holders to get work authorization.

 2.      Improving employment-based green card backlogs by:

 a.       Making visa issuance more efficient so no immigrant visas are wasted;

 b.      Providing for better AC21 rules and other ways to keep immigrant visas intact after a change of jobs.  USCIS will clarify what constitutes “same or similar” job so that AC21 will not stop workers from getting promotions or even changing to related jobs within their field.  USCIS must clear the path to career progression for green card applicants.

 3.      Expandingfurther the OPT time for STEM students, but creating tighter control on which universities/schools/degrees are eligible and ensure local workers are protected (Implement some sort of a “mini PERM?”).

 4.      Creating opportunities for foreign “inventors, researchers and founders of start-up” companies to come to the USA through an existing program called “National Interest Waiver.”  Unfortunately for India, this is an EB-2 category program requiring several years of wait.  But the following parole program will help:

 a.       Creating a parole (which is usually a temporary, but very quick measure and could eventually lead to a green card) program so that on a case-by-case bases, “inventors, researchers and founders of start-up” companies can be brought quickly into the USA where: 

 i.They have raised financing in the USA; OR  

 ii.Otherwise hold the promise of innovation and job creation through development of new technologies OR cutting edge research

 5.      Creating guidelines for exceptionally qualified or advanced degreed individuals to come to the USA through an existing program called “National Interest Waiver.”  As noted, unfortunately for India, this is an EB-2 category program requiring several years of wait.  But the parole option above could be helpful.

 6.      Providing clear guidance on L-1B program as to who can qualify. 


Obama's Immigration Action EAD At I-140 Stage

Question details

I am on H-1B Visa, got my I-140 approved in EB-2 Category and waiting for the dates to get current. Based on Executive Action, shall I be given any EAD ? Or at least any other forms so that I can travel and need not go for Visa Stamping and all the additional paper work.

I have heard that there is a proposal to allow filing of I-485 

From AOS to pending to green card

Question details

If the employee was already working for the employer using AC21 (using EAD) and was already on payroll Then what steps employer has to do to actually get the employee on the GC job other than changing I-9 details. And what document proof employee need to have that may be helpful when one apply for citizenship ? to prove that employee indeed gave employee the GC job ?

Other than updating the I-9, there are no immigration law steps involved in going from AOS to pending to green card. There is no need for any specific documentation. So far, no proof of job has ever been required. Your W-2/Paystubs should suffice, if the issue ever arises. If you are unsure, just get a new offer letter confirming the job.

Adjustment of Status, Form I-130, Form I-485, ESTA, Fraud/Misrepresentation, Waiver

We have received a particularly remarkable green card approval a few weeks ago. USCIS alleged fraud and denied the green card where the spouse of a US citizen had entered the US on visa waiver and then applied for Adjustment of Status (AOS) within a few days after entry. We were retained once the green card had been denied. The allegations of fraud or misrepresentation are particularly troublesome because they operate as a PERMANENT bar against immigration. There is a narrowly tailored waiver available, but it can be difficult to obtain.

Green Card AOS Approved

Immigration Law

EB3 to EB2 conversion

Substantial transcription for video

EB3 to EB2 conversion

EB3 to EB2 porting

EB3 to EB2

 Good afternoon, everyone.  This is US Immigration Attorney, Rajiv S. Khanna for, the Law Offices of Rajiv S. Khanna, P.C.

 This is a community information call.  It is not intended to create an attorney/client relationship.  Whatever we say here remains merely an informational conversation.

 This is a follow-up to the August 30 Community Conference Call.

 We are talking about issues related to converting from EB3 to EB2.

 What is this idea of EB-3 to EB-2 conversion?

 Most of you know that EB-3 for countries like India and China are very backed up and EB-2’s are better.  Actually, for the rest of the world also, EB-2 is much better.  So sometimes even though you have obtained a Labor Certification (PERM certification) and then you obtained an I-140 approval or you are on the path to that, you feel, “Oh, maybe I should have filed an EB-2, or maybe circumstances have changed and now I can file under EB-2.”  So, in those cases, when we get the priority date from an EB-3 case and put it on top of an EB-2 case, thereby essentially converting an EB-3 case to an EB-2 case, we refer to that loosely as a conversion.  Really, it is not a conversion.  It is a new case filed under EB-2, and essentially the priority date is being transferred.


One relevant question here.  Can priority dates be transferred if an employer revokes my old I-140? 

 The answer is “Yes.”  USCIS has said that they will allow transfers (carryovers) of priority dates even if the old I-140 is revoked, as long as the revocation is not for fraud.


So, when you do this analysis of EB-3 to EB-2 conversion, the first question you want to ask yourself is “Am I currently qualified for EB-2?”  

Why is this question important?  Remember a Green Card is for a job in the future, which means today I am working as a programmer; tomorrow’s job could be a project manager, and even though I continue to work as a programmer for the next three years or until I get my Green Card, it is not a problem.  The future job of project manager can be given to me once the Green Card is approved.  Or before.  That is up to the employer, but it is not required.  So the idea is a Green Card is for a future job.  However, you must be qualified for it on the date you filed the PERM application. 

So let’s say you have three years of experience after Bachelor’s Degree, and you know that the Green Card will take three or four more years, can you file under EB-2 today?  

No, because you are not qualified.  You may be qualified in two years or three years, but that does not mean you can file an EB-2 right now.

So are you currently qualified for EB-2?

One of the recommendations I have is for people who are not qualified and don’t have the five-year experience or have a three-year Bachelor’s Degree, you may consider doing a Master’s Degree online.  I have a video on this.  It’s on my blog.  It tells you how to choose an appropriate on-line Master’s Degree program that is accredited and that will help you get into EB-2.


Here is a link to the video and a transcript:

Accreditation of distance education for EB-2

The next question you want to ask yourself is Do I want to process my EB-2 case with the same employer who petitioned the EB-3 or some other employer?

It is a little bit easier to do it with another employer, but given the choice between going with a totally new employer and going with an employer who is totally, solidly behind me, who is going to pay the attorney’s fees.  This is a considerable expense.  If they’re on my side and they want to cooperate fully with the law, then of course I would stay with the same employer.


The next question you have to ask yourself is Do you need a promotion--present or future?

What does that mean?  What if you have three years of experience before you joined this employer, you want to process your Green Card through this employer, and you’ve got two years with this employer now?  Now you’ve got five years but two years are with the same employer through whom you are going to file your EB-2 who also did your EB-3 earlier.  In order to use that experience, you must be offered a job which is more than fifty percent different than what you were doing before.  Let’s say the old job was all coding and the new job is mostly providing project management, so that’s a promotion and then the experience that you have gained with this employer can be applied towards your EB-2.

I hope I’m making myself clear.  Most of you already know the concepts, but still I want to put it out there so that you are sensitized to the issues.  You can ask your lawyers the right kind of questions and make sure your case is being properly approached.  These concepts are difficult.  They can be complicated.  Even we can make mistakes.  Lawyers are not perfect, as all of you know.  Be educated and take your lawyers’ help in making these decisions.


It is very important to have a bona fide job.  

What does that mean?  If you have a three-employee company and the employer says, “I will you a promotion.”  That’s a little difficult to establish and believe.  It can be true but, if you are a 300-employee company or a 3,000-employee company, probably a better case for a promotion, but of course it all depends upon the facts of the case.  I’m just giving you an example.  This does not mean smaller companies cannot process promotion cases.

How do I eliminate the risk of problems of EB-3?

What does that mean?  I already have my EB-3 approval.  I don’t want to do anything that’s going to mess that up.

What you can do is, you can make sure, taking the example of the programmer under EB-3 who wants to go for project manager under EB-2.  If your EB-3 was for a programmer, make sure you continue working as a programmer until the I-140 for the new case is approved.  So don’t change jobs, because, if you take a promotion to project manager, then the Government could question, "This guy has already taken a promotion, then why would he come back to the lower job which is the Green Card job?” Do not take a promotion until the I-140 for the new case is approved.  That would be important.

What if I used AC-21?

This is a very tricky situation. You are one of the lucky ones who’s got your I- 485 pending and I-140 is approved under EB-3.  You changed from IBM to Sun Microsystems.  You changed employers.  Your job was programmer.  Now, for AC-21, the job that Sun gives you has to be the same or similar to the job IBM gave you.  So it’s got to be a programmer or thereabouts.  Now the problem here is this.  In order for Sun Microsystems to process your case under EB-2, they have to assess whether they have to promote you so that an EB-2-level job can be given to you or can they use the same job.  This can be tricky.

So for AC-21, the key question is can the same job which was the subject of AC-21 be used to file an EB-2 case?  

Tricky question.  Depends upon the facts of the case.

Now, to the posted set of Questions from the Community Conference call of August 30th.

First Set of Questions


Question:  I have an I-485 pending on EB-3.  I have been with my company for 12 years.  They are planning to apply for EB-2.  Same company.  I have a Bachelor’s four-year engineering degree from India.  Can I qualify for EB-2?

 Answer:  Yes if the job that is being offered to you is sufficiently dissimilar from the EB-3 job.


Question:  Is there any audit risk?

 Answer:  No.  Filing for a conversion (again, I am using the term “conversion” loosely) does not create any additional audit risks.


Question:  If we apply in EB-2, will my EB-3 application processing stop?

 Answer:  No, it does not stop.


Question:  What happens to the EB-3?

 Answer:  It goes on.  Don’t take up a promotion.  I just mentioned that.


Question:  My wife is working on EAD.  Will her EAD be affected?

Answer:  No, not at all.  No problem at all.


Question:  If I get EB-2 I- 140 approved, can I use EB-3 priority date?

Answer:  Yes.


Question:  At that time, will I get another EAD from EB-2 processing?

Answer:  No.  What you do is, you take the EB-2 I-140 approval and put it on top of the existing I-485.  So your old I-140 gets knocked out and the new one now sits on top of your I-485.  So I-485 does not need to be re-filed.

Second set of questions


Question:  He is preparing for his I-140 for EB-2.  Can this be done premium processing?

Answer:  Sure.


Question:  Do we have to specify the pending EB-3 case information?

Answer:  You will have to, because if there is an I-140 approved or pending under the old case, you have to mention that.  There is a question I think on the form.


Question:  Should we do it during the I-140 filing?

Answer:  Yes.  On the form itself, there is a question.  If there is only a Labor Certification pending, there is nothing to say.  If the I-140 is either pending or approved from the old case, you have to say it in the new I-140.


Question:  When I started filing for my EB-2 case, my attorney mentioned not to file AC-21. 

Answer:  I think that’s a personal choice.  I like to file AC-21’s and then I like to assess whether I would need a promotion case or I can go ahead with the same AC-21 job for EB-2.  I would like your lawyer to decide that as I do not know the case.

AC21 Green Card Portability after 180 days of I-485 Pendency - Part 2

Substantial transcription for video

AC21 Green Card Portability after 180 days of I-485 Pendency - Part 2


15th August, 2012.

Good morning, folks.  This is Rajiv S. Khanna for, the Law Offices of Rajiv S. Khanna, P.C.

This is in continuation of the Community Conference Call in which we specifically wanted to discuss AC21 issues, because there’s a bunch of them that bear recording in a separate treatment because a lot of people face the same kind of issues and there’s a lot of doubt about how to handle them.

I have two members of the community on the phone with us.  It is understood that this call is being recorded and will be made publicly available, and everyone is fine with that.

This is just an informational call.  You are not hiring us.  We are not agreeing to represent you.  Neither party owes the other anything.


Company A applied for my labor, a I-140 and I-485, and I got my EAD through that company in EB-3 category.  I switched to Company B, invoking AC21, and have been working there the last two years.  Company C applied for future employment. 

First thing I want to make clear for everybody is that, under the Yates Memorandum of May 2005, it is absolutely okay for you to do an AC21 based upon a future company’s job application. 

So let’s modify your example a little bit.  Let’s say you are working for Employer B, and Employer C has started your Green Card as a future employer.  Let’s say Employer C gets your I-140 approved.  

Can you now file I-485 through Employer C even though you are working for Employer B?

The answer is, “Yes,” of course, based upon a genuine desire to join them, Employer C, when the Green Card comes through or sometime before. 

Can you after 180 days without ever joining Employer C, join an Employer D or continue working with Employer B?

Yes.  You can do an AC21 without ever joining the future employer.  There has been some confusion about this issue, but Yates Memorandum does say that very clearly.  This is a memorandum from May 2005.  It very clearly says that it is okay for you to port from a future job without ever joining that employer.  So, as a principle, that’s clearly understood.  Now looking at your situation specifically, Green Card EB-3 started with Employer A, moved over to Employer B, and you’re on AC21 and Green Card is done through Employer C under EB-2 category from an earlier date.  So your EB-3 date is 2006, but your EB-2 through Company C is 2004.  Now to make things kind of interesting, Company C got closed, so that company is no longer in operation.  Now, again, as a matter of general law, what happens is a couple of things are clear.  USCIS has the right to revoke an I-140--any I-140--where the company who’s sponsored that I-140 ceases to do business.

How does that correlate with AC21?  

It correlates as follows:  If an employee has already used AC21 and ported using that AC21 and then USCIS revokes that I-140 for the company having ceased to do business, I don’t think AC21 is going to be affected.  Normally, if you stayed with the same company, Company C, or you did not do a porting of Company C’s I-140 approval and I-485 pendency, you would be out of luck because they can revoke the I-140 as soon as the company stops doing business.  But, in your case, they have not revoked, so the I-140 is still very much alive.  However, what you can’t do is, you can’t file an I-485 based upon Company C’s job offer, because the company no longer exists.  You could say, “Wait!  I already have an I-485 pending.”  You do. 

This is a gray area of the law that nobody can really answer for you.  

In your situation, can you use the future AC21 portability so that you can get EB-2 date of 2004 with any employer?

I am not sure about that, but one thing I am sure about is that you can get the 2004 priority date and take it to any employer.  So what are you doing?  You are doing a mix thing.  This is very sure.  This you can do.  So far as what USCIS has said, this is what it said. 

Even if the I-140 is going to be revoked (It’s not revoked, but even if it were revoked), that 2004 date is yours to keep.  So, you are getting the date from Employer C, but you are getting the AC21 from Employer A. 

So we know very clearly that you are entitled to EB-3 2004.  So, you are entitled to EB-3 2004, no question. 

Are you also entitled to EB-2 2004?

That’s very doubtful.  Why?  Because, even though the 485 that was pending does not have to be refiled when you file an EB-2 based case through Employer C for 485.  However, if the company had still been in existence, and you come to me and say, “Rajiv, I want to get my 485 converted to EB-2 application.  Basically attach it to the I-140 through Company C.”  I would have said, “Let’s get an offer of employment from Employer C and we can send that.”  I would have taken that, and I would have told the government to convert your pending 485 to a petition of EB-2 under Company C.  But the problem is that company is no longer in existence.

Is that a required step?  

Not really.  Sending a letter in from Company C.  Is that a required step for converting your case to EB-2, 2004 AC21?

Not really, but I think it can be said that it is.  So, we are clear you are entitled to EB-3 2004 date because of Company C’s I-140 approval from 2004, but it is unclear whether you are entitled to EB-2 2004.

Can my EB-2 be ported?

What you are saying is, “Can I port my EB-2 job to my current company?”   There is no other way to port.  You can either take the priority date or you can take whole Green Card.  

Can I port the whole Green Card?

You cannot move that or we’re not clear if you can move that, because we don’t have that one step of the job offer being submitted to the USCIS. 

Had the company been in existence, and I could have gotten a genuine job offer from them, and I could have submitted that, then you could have ported that job anywhere or that Green Card anywhere, including to your current employer.

Can you do it anyway? 

I don’t know the answer to that question, because that is a gray area of law.  Nobody can, at least I don’t think anyone can positively say, this is the way it’s going to go.  

Is it worth trying?  

I don’t know the answer.

How far are you from your priority date in 2004 EB-3?  Is that too far away?  

August, 2002.

It might be worth trying an EB-2 AC21, but here’s what you need to be careful of.  When you port a job from one place to another, from one employer to another, what you are telling the government is, this job is same or similar to the job that was the subject of the Green Card proceedings.  When you went from Employer A to Employer B, you told the government that, “Mr. USCIS, the job that Employer B is giving me is same or similar to the job that Employer A gave me under the Green Card.” Same or Similar.

Now, when you do an AC21 portability under the EB-2, you will be making same argument for the EB-2 job.  You will be saying, “Mr. USCIS, Company B is offering me a job that is same or similar to the job described by Company C in their Green Card petition.”  As we have discussed, the two jobs are basically similar.  I want a lawyer to look at it and make sure that they are similar.  That’s the only thing I am concerned about.  I don’t want you to push for EB-2 and then have questions raised about EB-3 also.  I think you are reasonably safe if the jobs are same or similar.  Because for the same job description, one company can have one requirement, another company can have another requirement.  We care only that the jobs are the same or similar.

This itself is a big problem.  I want to make a general comment about this.  Nobody quite knows what same or similar is.

USCIS did a whole shebang of trying to clarify this.  Actually, they have not clarified anything.  They have only made things more confusing.  It appears that, if the salaries are too far different, they can start questioning it.  It appears that if the jobs are totally dissimilar, of course, they are not going to allow AC21.  

But what is similar?  

Nobody knows.  So let your lawyer take a look at it if you don’t want to take a chance on this.  AC21 is a one-shot deal.  If the 485 gets denied, we will have a lot of problems.  The only option at that point would be to get another job and try to reopen the I-485, which becomes very complicated.  So somebody should look at the job, make sure that the AC21 is applicable to the EB-2 job without hurting your EB-3. 

In general, what is the difference between filing I-485 through a future employer and just doing portability for a future employer?

Let me explain what the difference is.  Normally, in order for you to do portability, you have to file a 485, the 485 must have been pending for 180 days, and the I-140 must have been approved.

What are we clear about?  

We are clear about the timing of the 485 in general.  We know, if an I-140 is filed in January, and an I-485 is also filed in January at the same time, concurrently, the I-140 gets approved in July, which is more than 180 days later.

Can you port now? 

The answer is yes, because the moment the I-140 is approved, we look back and see, has the 485 has been pending for 180 days?

If the I-140 gets denied, then you can’t port.  We know that once an I-140 has been pending 180 days, whether or not it was after the I-140 approval, we don’t care.

Now let’s take your case specifically.  What is the difference between I-485 filing and AC21 filing?

In normal cases, in order to take advantage of AC21, you have to file the 485, have the 485 pending 180 days, and have the I-140 approval.

Does it have to be an I-485 with the same employer from whom the I-140 got approved?

That’s where the problem is.  I don’t think it does.  You have a 485 pending, and you have an I-140 approved through Employer C.  Do they have to be in the same package? I don’t think they do.  But the grayness in the situation comes because we don’t have an offer letter that connects anything to anyone.  But, even though the I-140 was approved, the company went out of business.  

Now, can we do really do an AC21? 

I don’t know.  It’s a gray area.  I would push for it.  I would try it, and maybe I could make USCIS see how technically this is okay, but I don’t know for sure if it’s coming.


Second Set of Questions

My I-140 was approved through my current employer, I am completing my six years in September on H-1B, and they filed for my three-year extension.  If I am laid off on H-1B, is there any grace period to find my next job?

There is no grace period.  I have a lengthy article on my blog on this issue:

If I find a new job, my new employer does the H-1B, and I can get the three-year extension based on the I-140 approval.  Does the new job have to be similar in role that I have right now?

That’s a very interesting question, but answer is, luckily for you, “No.”

There are several benefits flowing from I-140 approval:

1)    You get to carry your priority date forward.  When you carry your priority date forward, does it have to be same in a same or similar profession or job as described in the Green Card?  No, it does not.  To carry the priority date forward, it can be a totally different job and it can be carried across categories, EB-1, EB-2, EB-3.  It doesn’t matter.

2)    The second benefit is AC21, If 485 has been pending.  Then you have to have same or similar job.

3)    The third benefit is H-1 extension.  For H-1 extension, an approved I-140 must exist and continue to exist when you get the H-1 approval.  Approval of the H-1 does not have to be in the same or similar job for which the I-140 was approved.  It can be totally different.  It can be different job location, different region, different employer, different job.  The benefit of the H-1 extension beyond six years does not require that your job must be same or similar.  Only AC21 job requires same or similar.

If I have to go on H-4 for some time, then I find a job, the same I-140, and my company doesn’t revoke the I-140, can I use that I-140 approval to get a three year extension on the new employer, if I find them later on?

Theoretically, the answer is yes, but practically, this is what I would worry about. 

I don’t mean to scare you.  It’s a good idea to think of everything that can go wrong and kind of be ready.

There are cases on the books—I’ve seen them, I’ve read them--that say for an I-140 to continue to be valid, the job must not have been extinguished.  So, what if you file the H-1 and USCIS says, “Aha.  You are on H-4.  That must really mean that the job is extinguished, the I-140 job.  So, we are going to revoke the I-140”? 

It is very unlikely that they will do that, extremely unlikely, but it can be said that it’s possible.  It may not be probable, but it’s possible.  My argument would be, “As long as the I-140 was surviving on the date I filed the H-1, you have to give me my H-1.”  So, in short, I think you can, but be aware that it could be an issue.

If I find a new employer and I get a three-year extension based on current I-140 approval, does my new employer have to start my Green Card process immediately or, since I have three years with him, he can wait to file after one year?

They should start as early as possible.  But, normally, once USCIS has given the H-1, they will not take it back, even if the I-140 is revoked normally.  So, I feel that it would be reasonably safe to wait a year.

The priority date can be carried over without any problems?

Absolutely.  That USCIS has made clear.  Even if they revoke I-140, they let you carry the priority date forward.

Good luck, guys.  Thanks for being here.