FAQ: AC21 Portability and I-140 / I-485

Q: What is AC21?

A: The term AC21 refers to American Competitiveness in the Twenty-First Century Act. A bill signed into law by President Clinton in October of 2000.

Q: What does AC21 do?

A: AC21 does two primary things. First, AC21 allows immigrants who have filed form I-485 and form I-140 to freely transfer or "port" to a new employer. Second, AC21 allows the same portability for nonimmigrants with an H-1B visa.

This FAQ deals with AC21 portability and immigrant petitions / adjustment of status applications (I-140/I-485). For an FAQ on AC21 portability and H-1B visas please click here.

Q: What is form I-140?

A: Form I-140 is the immigration petition that must be filed for every immigrant who is coming to the United States for employment. The company that offered the immigrant employment almost always files the I-140. Depending on the type of employment, a labor certification may also be required.

Q: What is form I-485?

A: Form I-485 is used by an immigrant in the United States to apply to adjust their status to permanent resident status (e.g., applying for a green card). Due to recent changes in the law, this form is usually filed concurrently with form I-140.

Q: How does AC21 allow portability of an I-140?

A: AC21's portability provisions allow an immigrant to transfer to a new employer without completing a new Form I-140 and/or labor certification.

Q: What does an immigrant have to do in order to use AC21 portability provisions?

A: AC21 portability provides that the original Form I-140 and/or the labor certification approval of an employment based immigrant will remain valid when an alien changes jobs, only if:

1) Form I485, the Application to Adjust Status, has been filed and had not been adjudicated (approved or disapproved) for 180 days or more; and

2) The new employment is in the same or similar occupational class as the job for which the original labor certification or I-140   approval was initially made.

Q: How does the Government determine if a job is in the same or similar occupational class?

A: To determine whether the new job is in the "same or similar" occupational classification, the Government will:

1. Compare the new job's duties with the job duties listed in the alien's initial I-140;
   
2. Compare the DOT code or SOC code assigned to your original I-140. These codes are based on your labor    certification and will be used to judge whether the new employment is in the same or similar occupational classification.
   

   a. An appropriate code will be determined by the Government if a labor certification was not required.

3. Determine if there is a substantial discrepancy between the previous and the new salary. They need not be identical; however, a large discrepancy may hurt you.

Q: Does the new employer have to be in the same city?

A: No. The new employer can be located anywhere in the United States. The same or similar term does not include any reference to geographic location.

Q: Does the immigrant have to obtain another labor certification for the new employment?

A: No. The immigrant's original labor certification from the first employer remains valid for the new employment.

Q: Can an immigrant use AC21 if their I-485 has not been pending for 180 days?

A: Maybe. Switching employers before 180 days is, by itself, insufficient for denying an adjustment of status application. However, attempting to use AC21 portability before an I-485 has been pending for 180 days may cause problems. For example:

1) If the I-140 is revoked at any time the I-485 application may be denied.

2) If the I-140 is withdrawn by an angry ex-employer before the I-485 reaches 180 days the application will most likely be denied.

Q: Can an immigrant change employers more than once using AC21 portability?

A: Maybe. This question has not been definitely answered by USCIS. A fair reading of the law seems to indicate an alien could change jobs more than once and still have their I-485 approved. Any person or business who utilizes AC21's portability provisions for more than one employer should contact an experienced immigration attorney to protect their interests.

Keep in mind that the USCIS has not issued final regulations pertaining to AC21 portability. If you intend to change employers or you intend to hire an employee using AC21portability you should contact an attorney. The experienced and skilled immigration attorneys at Shihab & Associates Co., LPA are fully prepared to help you along every step of the way with AC21 portability.