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AC21 Articles

February 2013 Visa Bulletin – EB-2 India Remains Unchanged at September 1, 2004

The U.S. State Department has just released the February 2013 Visa Bulletin which is the fifth Visa Bulletin for the FY2013 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the lack of movement (again) in EB-2 India.   Many have been looking forward to this Visa Bulletin in order to gauge the anticipated rate of the forward movement in EB-2 India over the next months; unfortunately, it seems that EB-2 India may continue to face a very slow (if any) forward movement over the next months.  There is continued notable forward movement in EB-3 China of almost two months.

Summary of the February 2013 Visa Bulletin – Employment-Based (EB)

Below is a summary of the February 2013 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all now current.    EB-2 India remains unchanged, again, at (the severely retrogressed) September 1, 2004.   EB-2 China moves forward by five (5) weeks to January 15, 2008.
  • EB-3 ROW and EB-3 Mexico move forward by six (6) weeks to March 15, 2007.  EB-3 Philippines moves forward by only one (1) week to August 22, 2006, EB-3 China  moves forward by seven (7) weeks to November 15, 2006, while EB-3 India  moves forward by only one (1) week to November 15, 2002.
  • The “other worker” category moves forward by six (6) weeks for ROW and Mexico to March 15, 2007.  It moves forward by one (1) week at August 22, 2006 for Philippines and remains unchanged (again) at July 1, 2003 for China.  It moves forward by one (1) week for India to November 15, 2002.

Summary of the February 2013 Visa Bulletin – Family-Based (FB)

Below is a summary of the February 2013 Visa Bulletin with respect to family-based petitions:

  • FB-1 continues to move forward.  FB-1 ROW, China and India all move forward by three (3) weeks to January 15, 2006.   FB-1 Mexico moves forward by only one (1) week to July 15, 1993 and FB-1 Philippines moves forward by ten (10) weeks to March 8, 1998.
  • FB-2A moves forward by one (1) month to October 22, 2010 for ROW, China, India, and Philippines.  FB-2A Mexico moves forward by five (5) weeks to October 8, 2010.
  • FB-2B ROW, China and India all move forward by five (5) weeks to January 15, 2005.  FB-2B Mexico moves forward by three (3) weeks to December 15, 1992 while FB-2B Philippines moves forward by one (1) month to May 15, 2002.

No Progress in EB-2 India – Confirms Our Expectations for a Very Slow Forward Movement in the Future?

Similar to the past two to three months, many in the EB-2 India community have been eagerly anticipating to see what the February 2013 Visa Bulletin would look like in an effort to “predict” how quickly the cutoff dates in EB-2 India would move in the future.   Unfortunately, the February 2013 Visa Bulletin does not bring good news.   The continued lack of any movement in EB-2 India this month is a strong indication that there is simply too high of a demand in the EB-2 India category and that the Department of State would move the cutoff dates forward very slowly in order to allow USCIS to approve the (high) number of EB-2 cases filed and pending.    This is the Department of State’s way to “control” the demand of visas in this category (number of new I-485 filings) and to allow USCIS to work through the number of filed and pending I-485 applications in this category (many of whom are by now eligible for AC21 porting, however).

The movements (or the lack thereof) reflected in the February 2013 Visa Bulletin confirm the predictions and the comments made by Mr. Charles Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State.   The lack of movement in EB-2 India confirms Mr. Oppenheim’s comments that EB-2 India will move very slowly over the next months.  Based on the significant retrogression of few months ago and the lack of any movement this month, combined with Mr. Oppenheim’s expectations, we expect that there will be very slow and gradual forward movement in this category over the next months.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the February 2013 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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Rules Governing I-485 Portability to a New Employer Under AC21

In connection with the late 2011/early 2012 rush of adjustment of status (I-485) applications, mainly in the EB-2 India and China categories, and due to the fact that there are many I-485 applicants who are hoping to switch jobs, our office has handled numerous AC21 green card porting cases.   Many of these I-485 filers now become eligible for porting their I-485 green card process to a new employer because their I-485 has now been pending for more than 180 days.   As a result, we seek to remind some folks that their I-485 may be portable to a new employer, for a same or similar job, and to provide some guidance and clarifications on the main rules and options for porting one’s I-485 green card application to a new employer under AC21.

AC21 Background

The American Competitiveness in the Twenty-First Century Act of October 2000 (AC21) provides in section 106(c) that an adjustment of status applicant who has an I-485 application pending for 180 days or longer is able to continue with the green card process even after s/he has changed employers, as long as the new job is in the same or a similar job classification.

Specifically, AC21 permits an individual to transfer, or “port”, his or her green card process to a different employer if (1) the new job is the “same or similar”, (2) Form I-140 has been approved or is approvable when filed concurrently with Form I-485, and (3) Form I-485 has been pending for at least 180 days.

Should I Invoke AC21 and Notify USCIS?

Invoking AC21 is automatic.  In other words, by meeting the AC21 requirements (e.g. switching to a different employer and by working in a “same or similar job”) the individual has  successfully taken advantage of green card portability provisions of AC21.  However, USCIS does not know that the individual has changed job.  As a result, it is best to notify USCIS of the job change and to inform USCIS that AC21’s requirements have been met. Filing an Ac21 notification with USCIS helps avoid problems in the future.

If a USCIS adjudicator has no knowledge of an individual using AC21 portability, and there is something “wrong” with the Form I-140 (revoked, for example), the adjudicator is required to issue a Notice of Intent to Deny (NOID) the pending I-485.  There have been cases when applicants responded to NOID with necessary documents to prove their eligibility for AC21, and their cases were still denied.  Although it is not difficult to reopen such a case with further explanation, it can be a real hassle and waste of time.

Another reason for invoking AC21 proactively is to preempt an RFE in cases where there is also a change of address.  While not officially confirmed by USCIS, in some cases when there is change of address, in addition to change of employer, USCIS gets a notification of this address change (due to the requirement that a Form AR-11 must be filed with USCIS).    In some cases, USCIS has been issuing RFEs on the pending I-485 applications seeking information relating to AC21.

In addition to preempting an RFE, as discussed above, another reason for filing AC21 notice is the opportunity to change the attorney of record on the I-485 case.  Often the I-485 is filed by an attorney of the former employer and after the employee departs, the former employer’s attorney may not be motivated to share very quickly with the employee any correspondence from USCIS, including time-sensitive RFE/NOIDs.

If I Decide to File AC21 Notification, When Is the Best Time To Do So?

Generally, there are two opportunities to file AC21 notification.  One is shortly after the individual starts his or her employment with the new employer.  The second one is if there is an RFE or NOID issued by USCIS.   Recognizing that there may not be an RFE or NOID issued at all, the question becomes whether it is worth spending the time (and money) to prepare and file AC21 shortly after starting the new job.

From our practice, there are certain distinct advantages to filing AC21 upon starting a new job, as opposed to doing so after receipt of a RFE/NOID:

  • You will control the timing of preparing and filing the AC21 documents — you will have time and be able to carefully prepare the documents required by the employee and your employer will have time to prepare a good employment verification letter.  On the other hand, if you wait for RFE/NOID, you will most likely be under a 30-day filing window to prepare and file the RFE/NOID response and rushing the preparation and filing of the documents will affect their quality and ultimately your case will not be presented as well as it could have been.
  • Your employee/employer relationship is likely to be very good – your employer is not likely to object to providing an employment verification letter soon after you start work.  On the other hand, if you wait for an RFE/NOID and the employer has grown unhappy, there is a strain on the employer/employee relationship or if the employer’s business is not doing well, it may be more difficult to ask for and obtain an employment verification letter.
  • You can change the attorney of record on your I-485 — if your former employer’s attorney is the attorney on record for the I-485, it is good idea to change the attorney of record as early as possible.  As indicated above, your former employer’s attorney may not be motivated or willing to share with you promptly time-sensitive correspondence from USCIS, including RFE/NOIDs.  Having your own attorney receive and address such correspondence as early as possible is important.

How “Similar” Should the New Job Be?

Another critical question in connection with AC21 is whether a new proposed job position is “same or similar” for purposes of complying with AC21 and meeting its requirements.

Generally, a new job should be in the same job classification as the job for which the approved immigrant petition was filed.  For example, an adjustment applicant working as Computer Analyst, where the PERM/I-140 were filed for Computer Systems Analysts (SOC code 15-1051.00) classification should be able to switch to a new job which fell under the same classification – 15-1051.00.

In a somewhat recent teleconference, the Nebraska Service Center (NSC) provided some unofficial but helpful guidance on their reasoning and practice when adjudicating AC21-related cases.   NSC was asked to provide some guidance as to their criteria in adjudicating the “same or similar” job standard.  In response, NSC confirmed that the “same or similar” has not been a significant issue because NSC has been applying a “common sense” approach – NSC has confirmed that most petitions invoking AC21 portability based on similar occupations are indeed usually similar, i.e. accountant doing another accounting position, IT consultant working in the IT field.    On the other hand, IT worker making “slurpees at the 7-Eleven” would not be considered to qualify under AC21.

While this conference call and the information about the “common sense” approach NSC takes with respect to AC21 review does not state the official USCIS position, it nonetheless provides a helpful insight into the operations and standards at NSC.  Also, it should serve to provide some relief and flexibility to the thousands of I-485 adjustment applicants who are seeking to switch jobs but when the new proposed jobs are not exactly similar to the jobs for which they were initially sponsored.

A salary discrepancy between the sponsored job and the AC21 job is also reviewed by USCIS — but the focus is to determine whether a substantial salary increase is cause by the passage of time, natural career growth or moving to a higher cost-of-living area (all of which are okay).   On the other hand, if a substantial salary discrepancy cannot be explained on some of these factors, it may suggest that the AC21 job is not “same or similar”.    In cases where there is substantial salary difference, an AC21 package should address the factors contributing to this salary increase.

Should H-1Bs Be Transferred or EAD Should be Used for Employment?

It should be noted that the analysis with respect to AC21 portability discussed herein does not necessarily depend on whether a new job is taken pursuant to EAD (based on the pending I-485 application) or pursuant to an H-1B transfer.   There are many case-specific factors which may affect the decision whether to work under EAD or H-1B — however, if all things are equal, we normally recommend that a new job be taken pursuant to an H-1B transfer.

The reason is that we recommend that foreign nationals who are I-485 applicants (and may otherwise be able to work using EAD) continue working and staying on the U.S. pursuant to H-1B status.   This way, in the event (however unlikely it may be) of an I-485 denial, the foreign national would be able to continue staying and working in the U.S. while the I-485 issues are addressed.   On the other hand, if one is employed with an EAD and the I-485 is denied, then this person (and family members) may need to leave the U.S. immediately, obtain H-1B extension (if possible) and H-1B stamp  before being able to return to the U.S.  — a situation which is certainly undesirable to employer and employee.

Travel Abroad

Another common two-part question we receive from current and prospective clients who are expecting visa number and have used AC21 to switch employers and are no longer with the original employer is 1) whether they can travel abroad using advance parole (AP) document issued when working with the former employer and 2) what should they respond, upon return, when questioned by a border agent about their employment situation.

First, it is worth reiterating the point made in the previous paragraph that it is better to continue working and traveling using H-1B (or L-1, as applicable) while waiting for I-485 approval and after changing employers under AC21.    Second, there is one major rule which warrants repeating – be frank and honest with the immigration or border officers.  These are highly qualified professionals who are trained to detect evasive, misleading, or false answers and if caught in a material misstatement, the consequences may be very significant.

AC21 was intended to address exactly the kind of situation to which the two-part question above applies.  After completing an AC21 switch of employers, the employee can freely continue his or her green card application and avail him- or herself of all of the benefits of pending green card adjustment of status application – including advance parole and EAD.  Thus, employees who have properly pending adjustment of status and unexpired advance parole document from a former employer can travel abroad and re-enter with such advance parole document with no issues.

Many clients are nervous to answer the question whether they are still employed by the sponsoring employer when, in fact, they are not.  However, the AC21 process is intended to address this kind of situation and we urge foreign nationals, who are asked this question upon their return to the country, to answer truthfully and explain to the border agent that they have done an AC21 transfer.

Some immigration attorneys advise against filing anything in connection with an AC21 job transfer.  However, we do advise our clients who switch jobs under AC21 to file a notification with USCIS (as discussed above).  The added benefit of this is that the employee has a letter documenting the AC21 transfer and which letter briefly explains the law and the circumstances of the AC21 transfer.  Having such letter and presenting it to the border agent upon re-entry is a nice way to deflect a skeptical border agent of the propriety of the AC21 job transfer.

Conclusion

As many I-485 applicants are now becoming eligible for AC21 porting to a new employer, we hope that many would first consider the pros and cons of AC21,  as discussed in this article, before jumping ship to a new employer.   There are significant issues and questions to be addressed before AC21 eligibility is confirmed — and considering that many, especially in EB-2 China and India, may have a long wait before their priority date becomes current, a decision to invoke AC21 is very important.

Our office is happy and available to assist with AC21 case analysis and with invoking AC21.   Please do not hesitate to contact us or consider our consultation options.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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EB-2 India and China Cutoff Dates Moved (“Internally”) Back to August 15, 2007; I-485 Filings Still Possible

We have written extensively over the past few weeks about the upcoming retrogression in the EB-2 India and China categories.   So, it should not come as a surprise that the Department of State has confirmed what we have anticipated and expected for a couple of weeks — namely, that the Department of State has “internally” moved back the cutoff dates for EB-2 India and China to August 15, 2007.

Department of State Confirms EB-2 India and China “Internal” Retrogression Even Before the Official May 2012 Visa Bulletin is Released

Mr. Charlie Oppenheim, the Chief of Visa Control at the State Department, has confirmed that, effective March 23, 2012, no further EB-2 visas will be authorized for China-mainland born and India applicants with priority dates of August 15, 2007, or later.  It should be noted that immigrant visa applicants processing in the month of April at consulates abroad will still receive visas, as those numbers were allocated before the cut-off date was established.

USCIS to Continue Accepting I-485 Applications for Adjustment of Status; Pending I-485 Will be Preadjudicated

Despite this “internal” retrogression, Mr. Oppenheim has confirmed that USCIS will continue to accept for the rest of the month of April new I-485 applications for adjustment of status for Indian and Chinese nationals with priority dates prior to the date established in the April 2012 Visa Bulletin.

Those filed and pending I-485 cases with priority dates of August 15, 2007, or later, should not see any approvals over the next few months.   Instead, those cases will be processed by USCIS to the point of approval (pre-adjudicated) and a request for a visa number will be forwarded to Visa Control at DOS to be held in a “pending” file until new visas are available beginning with FY2013 on October 1, 2012.

Conclusion

Many EB-2 India and China I-485 applicants will be disappointed by the fact that no new I-485 approvals will come for at least several months.   However, the fact that EB-2 India and China cutoff dates moved so significantly over the past several months has allowed many applicants to file their (and their families’) I-485 applications.   Among the immediate benefits of an I-485 filing are advance parole and work permit documents, in addition to ability to port a pending I-485 to a new employer under AC21.

As we enter the last 20-25 days of the current cutoff dates, we urge those EB-2 India and China applicants who are eligible to file their I-485s due to a current (as of the April 2012 Visa Bulletin) priority date to aim to do so as soon as possible and in any case before the end of the month.    Please contact us if we can be of any assistance in the process.

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AC21 Green Card Process Porting: How Similar Should the Jobs Be?

In connection with the 2007 adjustment of status (I-485) filing “blizzard” and due to the fact that there are many I-485 applicants who are hoping to switch jobs, our office has handled numerous AC21 green card porting cases.   One of the most frequent questions we receive is whether a new proposed job position is “same or similar” for purposes of complying with AC21 and meeting its requirements.

Generally, a new job should be in the same job classification as the job for which the approved immigrant petition was filed.  For example, an adjustment applicant working as Computer Analyst, where the PERM/I-140 were filed for Computer Systems Analysts (SOC code 15-1051.00) classification should be able to switch to a new job which fell under the same classification – 15-1051.00.

In a recent teleconference, the Nebraska Service Center (NSC) provided some unofficial but helpful guidance on their reasoning and practice when adjudicating AC21-related cases.   NSC was asked to provide some guidance as to their criteria in adjudicating the “same or similar” job standard.  In response, NSC confirmed that the “same or similar” has not been a significant issue because NSC has been applying a “common sense” approach – NSC has confirmed that most petitions invoking AC21 portability based on similar occupations are indeed usually similar, i.e. accountant doing another accounting position, IT consultant working in the IT field.    On the other hand, IT worker making “slurpees at the 7-Eleven” would not be considered to qualify under AC21.

While this conference call and the information about the “common sense” approach NSC takes with respect to AC21 review does not state the official USCIS position, it nonetheless provides a helpful insight into the operations and standards at NSC.  Also, it should serve to provide some relief and flexibility to the thousands of I-485 adjustment applicants who are seeking to switch jobs but when the new proposed jobs are not exactly similar to the jobs for which they were initially sponsored.

Computer Systems Analysts – 15-1051.00

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H-1B Employer Transfer After I-94 Expiration and “Bridging” of Transfer Petitions

“Bridging” is when successive H-1B portability (transfer) petitions are filed for an alien while the previous H-1B petitions remain pending and while the period on the initial I-94 card has expired.   We have a number of clients who are currently “bridging” their H-1B petitions and in light of the increased number of inquiries, it may be helpful to outline the process.

Most often the questions of “bridging” arise when an employee files an H-1B transfer application from Employer A to Employer B.  While the A->B transfer application is still pending and the Employer A I-94 card has expired, the employee wishes to start work for Company C and as a result, a portability transfer application is filed (B->C).  Under the Aytes Memorandum of December 27, 2005, the employee can start work for Employer C upon filing of the Employer C transfer petition; however, under the “bridging” rule, for the Employer C petition to be approved, every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay. In the event the employee’s nonimmigrant status (I-94 date) has expired while the A->B or B->C petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filings undercuts the “bridge” that “carried” any petition filed after the expiration of any approved status which will result in the denial of the successive requests to extend or change status.

As a result, if I-94 has expired and if A->B H-1B transfer is denied, then this would cause the B->C H-1B transfer to be denied because the alien’s authorized presence would no longer be supported by the A->C H-1B transfer.

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Premium Processing for I-140s Expanded

About 6 months ago, USCIS made premium processing available to certain cases where the I-140 beneficiary is in danger of  H-ing out. (Our original stories.)  USCIS has just announced that it is expanding the I-140 premium processing program.  Currently, only beneficiaries who are in H-1B status at the time of  the filing of the I-140 may request premium processing.  The new program, which becomes effective March 2, 2009, will allow beneficiaries who have reached or are reaching the limitation on their stay in H-1B nonimmigrant status to request premium processing.

Eligibility Criteria

I-140 Premium Processing, starting March 2, 2009, will be available to beneficiaries who, as of the date of filing the premium processing request:

  • are the beneficiary of a Form I-140 petition filed in a preference category that has been designated for premium processing service;
  • have reached the sixth-year statutory limitation of their H-1B stay, or will reach the end of their sixth year of H-1B stay within 60 days of filing;
  • are only eligible for a further H-1B extension under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) (which allows beneficiaries to extend H-1B in 3-year increments if I-140 is approved and a visa number is not immediately available); and
  • are ineligible to extend their H-1B status under section 106(a) of AC21.

Documents Needed by USCIS to Determine Eligibility

USCIS has indicated that certain documents are helpful to determine the premium processing eligibility of a particular  I-140 application:

  • Copies of all Forms I-94, Arrival/Departure Record and I-797 H-1B or L approval notices that have been issued on his or her behalf;
  • A copy of the relating Form I-140 petition receipt notice if the form was previously filed; and,
  • A copy of the labor certification approval letter issued by the Department of Labor, if filing under the EB-2 or EB-3 classifications.

Conclusion

By expanding the premium processing program for I-140s, USCIS effectively expands the window in which the premium processing request may be filed.  Previously,  only holders of valid H-1B status who had 60 days or less remaining on their status were eligible.  Now, under the new rule, premium processing can be filed 60 days before the expiration of H-1B status or after it expires.

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Clarification on H-1B Transfer After Layoff

In late January we wrote an article which described the immigration implications and options available to H-1B workers who have been laid off or otherwise terminated from their employment.  Our article was prompted by a Vermont Service Center (VSC) AILA Liaison guidance and has generated a fair amount of interest and comments.

Work Allowed While H-1B Transfer Pending Even if There is a Gap in Employment

Just this week, VSC’s AILA Liaison provides some clarifications which, in these difficult economic times, provide a fair amount of relief to terminated H-1B workers.    Our article, and the previous guidance from VSC, indicated that in order to be eligible to “port” to a new H-1B employer, the new H-1B petition must be filed before termination or before the old petition is revoked or withdrawn by the old employer.

However, if the H-1B portability criteria are met, then the foreign national would be eligible to work pursuant to H-1B portability upon filing the H-1B transfer application even if s/he was not eligible for an extension or change of status. The H-1B portability criteria are: (1) the foreign national was lawfully admitted; (2) the new H-1B petition is “nonfrivolous;” (3) the new H-1B petition was filed before the date of expiration of period of authorized stay (as described on the I-94 card); and (4) subsequent to lawful admission, the foreign national has not been employed without authorization.  (INA § 214(n))

For example, if an H-1B employee is terminated on February 1, and her employer requests revocation of her H-1B on February 1, then the H-1B status is automatically revoked pursuant to 8 C.F.R. § 214.2(h)(11)(ii).  However, the foreign national remains in the U.S. and finds a job on March 1 and the new employer files a new, non-frivolous H-1B petition on her behalf.  Since the foreign national was lawfully admitted, the petition is non-frivolous, the I-94 was not expired, and she has not worked without authorization between February 1 and March 1, then the foreign national is eligible to start work under INA § 214(n).

Scenarios Upon Approval of Pending H-1B Transfer Application

The foreign national is eligible to work until the petition is adjudicated.  Once the H-1B petition is approved, this “interim” authorization to work ceases, and one of two things can happen.  One, USCIS will use its discretion and approve an extension of status and the employee will continue to be able to work for the new sponsoring employer.  Or, two, USCIS will deny the extension of status request and the employee will have to depart the U.S., and either obtain an H-1B visa at a U.S. consulate, or, if she already has a valid H-1B visa from her former employer, she will simply need to depart the U.S. and, upon re-entry, present her old visa with the new I-797 and continue working.

Conclusion

The guidance from VSC makes it easy for employees to understand their options in the event their H-1B employment is terminated. Working for the new H-1B employer while the application is pending allows an employee to continue to receive income especially when there is a period of unemployment between the old H-1B employment and the new one.  However, it should be noted that it is possible that USCIS may decline to “forgive” the period of unemployment between the two H-1B jobs and as a result the foreign national will have to travel outside of the U.S.

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AC21 – Should I invoke it and, if so, when?

The American Competitiveness in the 21st Century Act (AC21) permits an individual to transfer, or “port”, his or her green card process to a different employer if (1) the new job is the “same or similar”, (2) Form I-140 has been approved or is approvable when filed concurrently with Form I-485, and (3) Form I-485 has been pending for at least 180 days.

We have been receiving numerous inquiries from individuals who wish to “port” their green card process to a “same or similar job” with different employer.  In addition to the question whether the new job is “same or similar”, the answer to which is beyond the scope of this post, the second most often question we receive is “When Should I Invoke AC21?”

Should I File AC21 Notification with USCIS?

Invoking AC21 is automatic.  In other words, by meeting the AC21 requirements (e.g. switching to a different employer and by working in a “same or similar job”) the individual has  successfully taken advantage of green card portability provisions of AC21.  However, USCIS does not know that the individual has changed job.  As a result, it is best to notify USCIS of the job change and to inform USCIS that AC21’s requirements have been met. Filing a Ac21 notification with USCIS helps avoid problems in the future.

If a USCIS adjudicator has no knowledge of an individual using AC21 portability, and there is something wrong with the Form I-140 (revoked, for example), the adjudicator is required to issue a Notice of Intent to Deny (NOID) the pending I-485.  There have been cases when applicants responded to NOID with necessary documents to prove their eligibility for AC21, and their cases were still denied.  Although it is not difficult to reopen such a case with further explanation, it can be a real hassle and waste of time.

Another reason for filing AC21 notice is the opportunity to change the attorney of record on the I-485 case.  Often the I-485 is filed by an attorney of the former employer and after the employee departs, the former employer’s attorney may not be motivated to share with the employee any correspondence from USCIS, including time-sensitive RFE/NOIDs.

If I Decide to File AC21 Notification, When Is the Best Time To Do So?

Generally, there are two opportunities to file AC21 notification.  One is shortly after the individual starts his or her employment with the new employer.  The second one is if there is an RFE or NOID issued by USCIS.   Recognizing that there may not be an RFE or NOID issued at all, the question becomes whether it is worth spending the time (and money) to prepare and file AC21 shortly after starting the new job.

From our practice, there are certain distinct advantages to filing AC21 upon starting a new job, as opposed to doing so after receipt of a RFE/NOID:

  • You will control the timing of preparing and filing the AC21 documents — you will have time and be able to carefully prepare the documents required by the employee and your employer will have time to prepare a good employment verification letter.  On the other hand, if you wait for RFE/NOID, you will most likely be under a 30-day filing window to prepare and file the RFE/NOID response and rushing the preparation and filing of the documents will affect their quality and ultimately your case will not be presented as well as it could have been.
  • Your employee/employer relationship is likely to be very good – your employer is not likely to object to providing an employment verification letter soon after you start work.  On the other hand, if you wait for an RFE/NOID and the employer has grown unhappy, there is a strain on the employer/employee relationship or if the employer’s business is not doing well, it may be more difficult to ask for and obtain an employment verification letter.
  • You can change the attorney of record on your I-485 — if your former employer’s attorney is the attorney on record for the I-485, it is good idea to change the attorney of record as early as possible.  As indicated above, your former employer’s attorney may not be motivated or willing to share with you promptly time-sensitive correspondence from USCIS, including RFE/NOIDs.  Having your own attorney receive and address such correspondence as early as possible is important.

We Can Help You Analyze The Best Course of Action for AC21

We have helped many individuals change employers and invoke AC21 while preserving their green card process.  If done properly, such AC21 porting should not raise problems with USCIS and should allow you to take full advantage of your skills and education.  Please contact us and we would be happy to review your AC21 case and advise you on the best course of action.

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