AC21 Green Card Portability after 180 days of I-485 Pendency - Part 1

Recorded 27 July 2012

Hello, everyone.  I want to talk today about AC21.  There is a lot of mystery, a lot of mystique.  People have been asking questions for a few years now, and I’m still not done answering all of the questions.  So I thought I’d just record this for you and hopefully I’ll cover most of the issues that I remember.  In case I am missing something, let me know.  Of course, this is just the first part.  I intend to do several parts on this AC21 issue.  If you have any follow up questions, you are welcome to send us an email through the Contact Us form on www.immigration.com

What exactly is AC21?

AC21 is an abbreviation for a law called American Competitiveness in the Twenty-First Century Act.  I think the law was enacted by Congress back in October 2000.  So the law has been in effect for fully 12 years, and USCIS has still not given us regulations.  It’s very important to have regulations.  If you do not have regulations, we have only the bare bones of the law.  In IT industry, you think of it as having just a high-level design.  We do not have any user interface, we do not have any functionality program, we do not have the code, and we do not really know what the law will really look like in implementation.  The last comprehensive interpretation of AC21 was back in May 2005 through something called the Yates Memorandum, given by William R. Yates, which basically answered a lot of questions, but there are still a lot left unanswered.

What is AC21’s effect on H-1?

Basically, this allows you to get H-1 extensions beyond six years; it allows you to change jobs while the H-1 transfer is pending.  I’m not discussing this now.  I want to focus on Green Card.  I will address H-1 later.

AC21 effect on Green Card

Every EB-2, EB-3, and some EB-1 holders can change to a same or similar job as described in their Green Card with any employer anywhere in USA.  You are not geographically restricted.  If your green card was filed in Colorado, you can move to California or Washington, DC.  What is required is the jobs be same or similar.  

Your I-140 has been approved, and your I-485 has been pending for 180 days.  How are the 180 days counted?

180 days are counted based upon the pendency of I-485, not necessarily after the I-140 has been approved.  Let me explain.  Let’s say I file your I-140 and I-485 today.  After 150 days (five months), your I-140 gets approved, and now your I-485 has been pending 150 days.  We only need 30 more days to reach to that 180 day count.  In other words, we don’t have to start counting from the date the I-140 has actually been approved.  We count based upon how many days the I-485 itself was pending.  Once the I-485 is approved, then, by operation of law, we only count what has been remaining of 180 days.  Once again, I file today, both the I-140 and I-485.  After 150 days, I-140 gets approved.  Now I have to wait only 30 more days.

What if I leave before I-140 is approved?

Mr. Yates made it quite clear that, as long as I-140 was approvable when filed, even if you left, it’s not going to affect the merits of your AC21 claim.  Once again, if the I-140 was approvable when filed, even if you left, it’s not going to hurt the merits of your AC21 claim, but there is something to worry about.

Does the employer still have the intent to hire me back and I to rejoin?

In other words, what triggers AC21?  It is not the approval of the I-140.  What if my I-140 and I-485 were not filed together, as happens to a lot of people.  Of course, if they were filed together, then remember the 150 days example I gave.  Even if you left, the I-140 gets approved.  We only have to wait those extra 30 days, and we are comfortable in knowing that we are covered by AC21.  But what if my I-140 has been filed, but not my I-485?  Then I have to do this analysis.  Does the employer have the intention to hire back and I to rejoin them?  If so, when my priority date becomes current, I can file for I-485 based upon the letter given by the employer for whom I used to work.  If you leave before your I-140 is approved and before the I-485 is filed, you’ve got to have a way to file an I-485 through the employer who has sponsored you, who initially filed for you, who petitioned for you.  That means there must be an intention to hire and rejoin.

What if I leave before 180 days are over, but the I-140 is approved?

Now the hypothetical is a little different.  Remember the 150 day example.  What if I leave on the 150th day, my I-140 is approved, but I am still 30 days short of the 180 days that’s needed for the I-485 to be pending?  This hypothetical assumes that both the I-140 and I-485 are concurrently filed.  If they were not concurrently filed, then of course the previous analysis--the intent analysis--if the employer has the intent to hire me back, then I can file an I-485.  Remember, you can always carry the priority date forward.  That’s what we’re talking about.  Once the 1-140 is approved, the priority date can be carried forward.  We’re talking about AC21.  That’s a different law altogether.

If I leave on the 151st day, am I okay? 

You are okay as long as USCIS does not start questioning you on the 151st day.  Mr. Yates said this.  If you have left before 180 days and if you do not have a RFE response due back asking you about your job before the 180 days, you are okay.  If I got an RFE before I left and the RFE response is due before 180 days, then the chances are I cannot use the AC21.  I can only carry forward my priority date.  If you don’t get this, join me in a free community conference call, and I’ll run over your scenario step-by-step.

What if I leave before 180 days are over, but the I-140 is approved, I-485 is pending, and I left during the 151st day?  As long as an RFE response is not due before the 180 days, you are okay.  It’s fairly safe to assume that you are going to be fine in any of these scenarios where you’ve left before the 180 days are over, because, typically, the RFE itself gives you a few weeks to respond and, by that time, if you’ve thought it over, you can respond with a new job offer. 

What if I’ve left, but I don’t have a job for some time?  Let’s say you left on the 150th day.  Your I-485 pending and I-140 approved, or both are pending, what if you do not have a job for some time?  Same analysis applies as long as an RFE response is not due before the 180 days are over.  If it’s due before the 180 days are over, you could have some problem.  But, if it is not due, you should be all right.  If you do not have a job for some time, that’s okay, too.

May I port from a future job?

This is a very interesting analysis.  The Yates Memorandum clearly says yes.  So I am working for employer A  on a  H-1, and employer B  has filed for my green card as a future job or, maybe even if I used to work with employer B, then I left them, and they continued by green card.  It becomes a future job, then I am not working on that job.  You can actually file an I-140 and I-485 for a future job and still do an AC21 to any job.  You actually never even have to join the future job as long as your intentions were clean when you filed the I-485.  So yes, you can port from a future job, and you can even port without ever joining that employer.

May I port to my own company or business?

This is a question I’m asked quite a lot.  The answer is yes.  It is not forbidden.  Why the double negative?  I’ll tell you what I’m worried about.  When somebody ports to his or her own company or business, one of the most important things is, remember I talked about jobs must be same or similar?  This is where the problem occurs.  Let’s say your title was Biochemist or IT Engineer or Software Engineer or Systems Administrator.  When you start your company, you kind of become the CEO or Manager.  That’s not acceptable.  That could cause the problem.  But what if you have a company your wife is managing, and you’re just an employee?  That’s okay.  That can be done.  So when you port to your company or business, make sure you discuss this in detail with your lawyers.  Make sure you understand what you’re allowed to do and what you’re not allowed to do.

The same or similar analysis is very confusing.  We don’t have clear understanding.  The closest you are to the jobs being the same, the better off you are.

What do I mean by the same job?  

What if I was a Java Developer in one job and a .Net Developer in another job?  I think that’s okay.  This is my interpretation, because you’re still a developer.  Nowhere does the law say you must have the same technologies covering both jobs.  In my view, you are okay even with different technologies.  I’ve never had this view supported by the government, so consider this my guess, something I would be comfortable arguing in court if I have to.

What is required to do an AC21, and what does it involve?

There is no law on what you are required to do.  If you do not inform the government, you are not breaking any law.  But in most cases, it is a smart idea to inform the government.  Why?  Because if you are subject to AC21, you ported over, and then the old employer revokes the I-140, for somebody who has successfully ported, that does not have any effect on them.  The old employer can revoke the I-140.  You are still entitled to your AC21 benefits.  However, I have seen cases when an old employer revoked the I-140.  Instead of sending the usual RFE, USCIS sends a Notice of Intent to Revoke the I-485, and if you do not get it in timely manner, sometimes you could have an issue.  Then you have to file a Motion to Reopen.  It becomes messier.  You might not have work authorization, because your I-485 has been revoked.  That’s why, further down, I am going to advise you to keep your H-1 active in most of these cases.  Even though the chances of something going wrong are extremely small, they do exist, and I like to cover every possible bad scenario that I possibly can.  What you have to do is have your lawyers write a letter to the government saying that you are using AC21 and porting over to same or similar job.

May I transfer more than once using AC21?

Yes, you can do 20,000 change of employers.  AC21 does not say you can do it only once.

Should I keep my H-1 active?

I just spoke about that.  I think you should as far as humanly possible.  If, for whatever reason, you cannot, it’s okay.  You’re still reasonably safe as long as you keep track of your ****, but, where possible, keep your H-1 active.  It’s so much better for you.

What are the dangers in using AC21?

One thing that has always bothered me is, if for some reason your I-485 is denied, for example, you are out of status and not even knowing you are out of status and your I-485 gets denied, you lose your AC21.  This is something I’ve seen come up.  An employee was placed in California where the LCA was approved for Colorado.  That’s a violation of the H-1 laws.  Most employers don’t know that.  Unfortunately, some of my colleagues I’ve seen poorly advise that you can just file a new LC.  That’s not true.  H-1 amendments are needed when the move is beyond normal commuting distance.  Inadvertently, you have fallen out of status for more than 180 days.  Now your I-485 is deniable.  You did not know that.  The next thing is you’re getting a denial of I-485, and you are losing your right to AC21.  That’s one major danger that I see all the time.  Other than that, everything is covered if you can keep you H-1 active and, if you cannot, I feel that your risks are minimal.  We have filed hundreds, if not thousands, of AC21 cases.  I have not had a single case run into any kind of problem. 

Sometimes, you can be interviewed.  Does your risk of being interviewed increase because you’ve filed an AC21?

I personally don’t think so.  I don’t see any indication of that.  But, certainly, I’ve heard people say that that’s what happens.  I don’t feel that’s a major danger.  I don’t think that happens that frequently, but keep that in mind as well. 

Folks, I hope I was able to give you some useful information.  I know it’s kind of confusing, but we’ll keep talking about it until things become clearer.

Thank you for listening.  Good luck.