AC21 FAQ

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What is AC21?

AC21 is The American Competitiveness in the Twenty-first Century Act of 2000. Key provisions of AC21 are:

  • AC21 exempts applicants that are employed by institutions of higher education, affiliated non-profit entities, and non-profit research organization or governmental research organization, from being counted against the H1B Cap.
  • AC21 allows H1B workers to begin working for a new employer upon filing the petition, rather than waiting for approval. Employment authorization shall continue for H1B workers until the new petition is adjudicated. If the new petition is denied, such authorization shall cease.
  • AC21 allows ability to extend H1B visa beyond 6 years if the employment-based Green Card process began at least 365 days or more before the end of 6th year and is currently ongoing.
  • AC21 allows an individual whose application for adjustment of status remained unadjudicated for 180 days or more to remain valid if the individual changes jobs to the same or a similar occupational classifications as the job for which the petition was filed.

Other topics include:

  • Extension of certain requirements and authorities through fical year 2002
  • Recovery of Visas used fraudulently
  • NSF Study and report on the "Digital Divide"
  • Modification of Non-Immigrant petitioner account provisions
  • Demonstration of programs and projects to provide technical skills training for workers
  • Kids 2000 crime prevention and computer education initiative
  • Use of fees for duties relating to petitions
  • Exclusion of certain "J' non-immigrants from numerical limitations applicable to "H1-B" non-immigrants
  • Study and report on the "Digital Divide"
  • Severability

The full text is available at USCIS. A number of guidance documents have been published over the years:

  • 2001-Jan-29: the Office of Field Operations issued a memorandum entitled Interim Guidance for Processing H-1B Applications for Admission as Affected by the American Competitiveness in the Twenty-First Century Act of 2002, Public Law 106-313.
  • 2001-Jun-19: the Office of Programs issued a follow-up memorandum entitled Initial Guidance for Processing H-1B Petitions as Affected by the American Competitiveness in the Twenty-First Century Act (Public Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106- 396). HQ 70/6.2.8, the Cronin Memo ([mirror).
  • 2003-Feb-28: the Immigration Service Division issued a memorandum entitled Procedures for concurrently filed family-based or employment-based Form I-485 when the underlying visa petition is denied.
  • 2003-Apr-24: the Office of Operations issued a memorandum entitled Guidance for Processing H-1B Petitions as Affected by the Twenty-First Century Department of Justice Appropriations Authorization Act (Public Law 107-273).
  • 2003-Aug-04: the Office of Operations issued a memorandum entitled Continuing Validity of Form I-140 Petition in Accordance with Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). Yates Memo 2003-Aug-04.
  • 2005-Sep-23: the Office of Field Operations issued a memorandum entitled Interim Guidance Regarding the Impact of the Department of Labor’s (DOL) PERM Rule on Determining Labor Certification Validity, Priority Dates for Employment-Based Form I-140 Petitions, duplicate Labor Certification Requests and Requests for Extension of H-1B Status
  • 2005-Oct-18, the Acting Deputy Director, designated a decision of the Administrative Appeals Office (AAO) in Matter of Al Wazzan (January 12, 2005) as a USCIS Adopted Decision.
  • 2005-Dec-27: the Office of Field Operations issued a memorandum entitled Interim guidance for processing I-140 employment-based immigrant petitions and I-485 and H-1B petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313). Yates Memo 2005-Dec-27. Note: This memorandum reissued prior guidance provided in the Yates memorandum with the same title on May 12, 2005 without change except to clarify the answer to question 1 in Section I.
  • 2008-May-30: Donald Neufeld, Acting Associate Director, Domestic Operations, issued a Supplemental Guidance Relating to Processing Forms I-140 Employment-Based Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 Adjustment Applications. HQ 70/6.2 AD 08-06, the Neufeld Memo. (mirror).

AC21 portability

Given the lengthy duration of green card adjudication, AC21 provides relief to those individuals who have applied for adjustment of status and have not yet received their green card, but have the opportunity to grow in their career by changing employment. Under AC21, the individuals with pending I-485 can:

  • Change jobs before I-485 Green Card is approved
  • Extend their H-1B visa beyond the 6-year limit

AC21 Portability Requirements

Under AC21, an individual can seek new employment when the following conditions are met:

  • New employment must be the in a same or similar occupational classification;
  • Form I-140 has been approved, or is approvable when filed concurrently with I-485; (very risky to change job at this stage)
  • Form I-485 has been pending for at least 180 days.

There are some gray areas with AC21 that are not yet clear and need more clarification from USCIS:

  • The new job must be in the same geographic location; or
  • The new job must pay the same or a higher salary; or
  • A new labor certification must be filed.

Same or Similar

An individual taking new employment must have the "same or similar" occupational classification just like the one described in initial Form I-140. Generally USCIS considers the following factors:

On 7th April 2011, USCIS announced clarification on Same or Similar classification. Please see the following thread for further information - http://immigrationvoice.org/forum/forum14-members-forum/2092141-announcement-uscis-issues-faq-for-clarifying-same-or-similar-classification.html

  • Job Description Comparison: USCIS compare new job duties with the one listed in the I-140 or PERM or labor certification.
  • DOT code and/or SOC code: USCIS will use the DOT/SOC code assigned to the I-140 based on your labor certification, or an appropriate code determined by the adjudicator if LC was not required, to judge whether the new employment is same or similar.
  • Wage information: The new salary should not be significantly different from the previous one. However, it doesn't have to be exactly the same or necessarily higher.

AC21 Frequently Asked Questions

AC21 portability job change analysis and how to handle MTR?

http://immigrationvoice.org/forum/blogs/chanduv23/12-ac21-job-change-a-detailed-analysis.html


When can I safely use AC21 portability after filing I140?

For AC21 portability, 180 days should be counted from the date USCIS receives your petition at one of its service center. However, if time is not the issue, 180 days should be counted from the notice date and not receipt date. The notice date and receipt date should be taken from the receipt notice issued by USCIS and not by guess estimation.

May I still use AC21 if I left my employer before the 180-day mark?

Using AC21 before 180 days is a risky move. The law clearly states that I485 petition should be pending for 180 days from the date the petition was received by the USCIS service center.

Am I supposed to notify USCIS after changing jobs under AC21?

There is no legal requirement or clarification from USCIS about this particular issue.

Attorney at law Ron Gotcher strongly advises against notifying USCIS: "In my experience, only bad things come from volunteering information to the CIS. I've never seen anyone benefit from doing so." [1]

Other lawyers recommend informing USCIS of using AC21 in order to avoid any potential headaches and delay in processing. One can inform USCIS just by writing a letter with the copy of receipt notice. At this point in time USCIS have not published any forms that individual can use and inform USCIS about their intent to use AC21.

See also this thread.

How much control does my employer have on my I-140?

Your employer has lot of control on your I-140. Employer can

  • Withdraw the unapproved I-140 before your I-485 reaches 180 days;
  • Ignore an RFE regarding the unapproved I-140 even if your I-485 has been pending for 180 days or more;
  • Revoke the approved I-140 before your I-485 reaches 180 days

If I-140 is approved and I-485 is pending for more than 180 days, the employer does not have any control since AC21 portability works in your favor.

Can I use AC21 portability multiple times or only once?

At this point in time there is not clarification from USCIS about the usage of AC21 provision. Most lawyers have interpreted the law and it appears that as long as one meets the eligibility requirements, one should be able to port I-140 more than once. It should be noted that frequent job changes may raise concerns to USCIS adjudicators.

Does my new job needs to be in the same city or region?

No. In May, 2006 USCIS issued a Memo that specifically states that geographic location of the new employment does not have to be the same as the one specified in the approved Labor Certification and initial Form I-140, as long as it is the same or similar occupational classification.

Does my new job need to pay me the same wages as originally mentioned in the Labor Certification?

In 2005, USCIS has issued a Memo which states that the difference in the wage offered on the approved Labor Certification, initial I-140 and the new employment cannot be used as a basis of a denial, as long as the case meets occupational classification requirement.

What are my options if the previous employer is out of business after AC21 invocation?

See thread.

What are the options for medical coverage after using AC21?

See thread.

AC21 job change - detailed analysis and MTR issues

People spend hours scanning the internet, participate in discussion forums, talk to lawyers and experts looking for information on changing jobs after 180 days of filing i 485. Based on my experience and general happenings, I decided I will write this blog so that it benefits everyone. AC21 is a law passed by President Clinton in 2000 - but the law never actually made it to the federal register and is followed by USCIS adjudicators through memos that are updated from time to time. So the law as such is non binding - which means there is no harm in not following the law, though it can be challenged in court (I am not sure how).

So what does this mean?

It basically means that one has to be ready to face some challenges if they change their job under AC21 law. But, the good news is, there is no recorded case of anyone who had to go back to their home country after their 485 is denied because they changed jobs under the AC21 law.

Lets do some more detailed analysis on this - lets discuss the scenario where you have already applied for i 485 and your 140 is approved and you have crossed 180 days after the 485 received date. In this situation - you can change job but the new job has to be same or similar - there are a lot of resources on the internet, discussion forums and it does not hurt if you have to pay a small consultation fee to a immigration lawyer to understand if your new job is compatible.

So what is the issue?

Well, i 140 is a petition that is filed by your employer stating that they really need you for the job in future. Once you leave the employer - the employer is not obligated to keep that position and usually in most companies the HR department follow rules appropriately and send a notification to USCIS stating that the beneficiary for the immigrant visa petition has left the company and they don't intend to keep that position open. The employers do this for various reasons - small employers do not want to submit to USCIS the list of immigrant beneficiaries who are not working for them because they do not want to show proof that they have ability to support the immigrant petition. Big companies like to keep their immigration paperwork clean and do not like to misrepresent anything to USCIS.

What happens when an employer requests I 140 petition to be revoked?

First - lets discuss what happens if such a request never comes from an employer. If you have changed jobs using AC21 and your 485 is being processed - the officer may not know that you have invoked AC21 and may just approve your 485. If you notified USCIS that you changed jobs under the AC21 law - your letter may/may not reach your file in time or in place - there are various reasons - AC21 law being non binding - is available through memos to adjudicating officers and most times there is no formal process associated with handing AC21 paperwork - which means - it gets handled in various different ways. In case the AC21 letter reaches your file - the Adjudicator can choose to review it and adjudicate your case or may decide to send a RFE requesting updated information about new job or may request an interview.

In case employer requests revoke of I-140

Their letter is formally processed. It is assigned to an officer. The officer usually has powers to use judgment in such cases and that's where AC21 beneficiaries get into issues.

So lets discuss what happens in the scenario when employer revokes I-140

USCIS through its memos, recommends that we send letter to USCIS about the new job change. Now, as there is no formal process, we are not sure if the letter reached our file. When the VO is processing the 140 revoke letter - sends acknowledgement that USCIS has received their request and their request has been approved and then looks into your 485. Technically - they are supposed to see if there is an updated letter on AC21 job change and continue with processing or request further information about new job and if they don't see any updated letter - they are supposed to send a NOID (Notice of Intent to Deny) on your 485 requesting you for an updated employment letter and give 30 days time to respond before denying your petition. Once the information is received, your 485 is back to normal and things continue to be normal. In reality - some officers are sending denial notices on i 485 when the ex employer requests for revoking 140 and in some cases the denial notice goes to ex employer's lawyer or the beneficiary does not receive the letter in time.

What do we do when we get a denial on 485? Don't panic. Do the following steps?

(1) If possible switch to a new job on H1b as against using EAD, though it does not hurt if you use an EAD to move - I will explain in detail. (2) Always send your AC21 docs to USCIS using a good personal Attorney and track delivery and keep the proof (3) Call USCIS and verify your address on their file (4) Create your profile with USCIS and keep checking status from time to time (5) If you get a denial on i 485 - talk to your lawyer and be ready to file for MTR (Motion to reopen) - you usually get 30 days to file for an MTR.

Now - lets look at what happens when you get a denial on 485 when you are on H1b or using EAD. On a H1b visa, your status does not change and you can continue to work as long as your h1b petition is valid - but remember if you are on h1b extensions based on the approved 140 or labor - you may not be able to get further extensions if you do not file for MTR and get the 485 reopened. So the best bet is to be on h1b as you can carry on with your regular work and file for MTR. If you use EAD, EAD is associated with i 485 and when you get a denial on 485, technically your EADs will also cease - your notifications will tell you how long your EADs are valid - could be few days (I am not sure). When you get a denial notice - you are technically out of status and you start accruing unlawful status.

Now - the big question is - can I work if I was using EAD? Well different people have interpreted this in a different manner and it is in your best interest to not work when you are not in legal status.

How will I deal with this?

Don't panic, follow these steps (1) As soon as you get the 485 denial notice - talk to a lawyer - but don't inform your HR or employer immediately as they may not understand this situation and may not ant to deal with this situation. (2) Ask your employer for a letter of employment and get it. (3) Explain to your employer that you may have to be on unpaid leave and will be available via phone for critical issues - you can have the Attorney explain this situation to the employer. (4) File for MTR promptly.

Now - what happens when one files for MTR?

When you file for MTR you have to do nothing but just wait. It usually takes few weeks (5 to 7) for a decision and the worst recorded case as seen in a discussion forum is around 120 to 130 days. Once your MTR is processed you get back on track and everything is back to normal. If you are using EAD and got a denial on i 485 - you start accruing unlawful status. You must not exceed 180 days of unlawful status, so mark your calendar to make sure you don't cross that mark and leave the country by 179 days abandoning your MTR and GC process. Such a thing is rare because usually if MTR is taking longer time, you can appeal and request expedite (not sure how this can be done as I have not seen a case where MTR needed expedite). The most important thing in this situation is to keep your spirits high and also save enough money for MTR filing and surviving and sustaining family when you are on non paid leave or have to seek new employment because company did not agree to keep you on unpaid leave. When filing an MTR all evidence has to be submitted like, filing AC21 letter and record of delivery, proof of 180 days stay in company after filing 485 through pay stubs and email communication and other stuff that a lawyer will be able to guide you.

What happens if MTR fails?

Some suggest that we can appeal in court and win. Need more information about this.

Finally -

The best part about all this is - AC21 has always worked though people go through hiccups. In my case the officer sent me a NOID requesting new job information and my new company HR department took care of it and my case was reopened when USCIS received the response to NOID. Lately a lot of people are getting denial notices on 485s and the intensity has gone up. IV is running a campaign requesting USCIS to address this issue. Please follow the thread on IV http://immigrationvoice.org/forum/forum85-action-items-for-everyone/22182-iv-action-item-write-to-uscis-on-recent-spate-of-i485-denials-in-ac21-cases.html and please participate in this campaign. It is a very important campaign. A lot of RFEs are also going out to AC21 job changers which could have been triggered by a AC21 letter or a AR11 address change or any other reason the officer thinks that the beneficiary is not working for the original petitioner anymore.

See also

AC21 Issues by Ron Gotcher of Immigration-Information.com

FAQ from Rajiv Khanna

FAQ from Sheela Murthy

FAQ from Carl Shusterman

Analysis from Siskind Susser
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