AC21 Portability - FAQs and Sample Letters to USCIS

Some people suggests that sending letter to USCIS on job change after invoking AC-21 portability is not required. But this is a gray area, and no one knows it better if USCIS should be informed when individual would invoke an AC-21 portability to change job once applicant's I-485 is pending for more than 180 days with USCIS. In my honest opinion, I would inform USCIS to avoid hassles later on. This way you can avoid RFEs later when visa numbers are available to process your I-485 cases.

Also with release of recent USCIS memo on " , we have started seeing more of such RFEs on pending I-485s, where individuals had invoked AC-21 portability and have not informed USCIS.

Please see FAQs (some we know and others were added as new facts based on recently released AC21-portability memo) and Sample Letter that should be sent to USCIS in case you will invoke AC-21 portability.

F.A.Q s on AC-21 Portability

AC-21 portability
AC21 contains two important provisions that allow:

1. Change of jobs before I-485 (Green Card) is approved; and
2. Extension of H-1B beyond the 6-year limit (discussed here).

AC21 has offered much needed relief to many immigrants in the past, and is even more critical now. Hundreds of thousands of people were able to file I-485 applications under the July Visa Bulletin of 2007, but are facing severe visa retrogression for the coming years. AC21 makes it possible to start a new career when needed or desired, before green card is approved.

AC21 Portability Requirements

The American Competitiveness in the 21st Century Act (AC21) permits an individual to seek new employment when the following conditions are met:

• New employment must be the "same or similar" occupational classification;


• Form I-140 has been approved, or is approvable when filed concurrently with I-485;


• Form I-485 has been pending for at least 180 days.

Note that AC21 does NOT specify:

• 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.

Important: USCIS has not published final regulations governing AC21. Service centers and field offices have been operating under the guidance of several interoffice memos. As a result, there are still some gray areas that need further clarification. More importantly, USCIS may change its interpretation of the law and take a more restrictive position in the future.

What exactly does "Same or Similar" mean?

To be eligible for AC21, your new employment must be the "same or similar" occupational classification to the one described in initial Form I-140. There is no clear definition of what constitute "same or similar," but a USCIS adjudicator will consider the following factors:

• Job Description: your job duties of the new employment will be compared with the job descriptions contained in your I-140 or labor certification (ETA 750A or new PERM).


• DOT code and/or SOC code: Your DOT code or 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, will be used to judge whether the new employment is the same or similar occupational classification.


• Wage information: your new salary should not be significantly different from the previous one. However, it doesn't have to be exactly the same or necessarily higher.

As per recent Memo on 'similar' and 'same' job

How does USCIS determine what qualifies as a same or similar occupational classification?
A2. USCIS generally makes a determination as to whether one job is in the “same or similar” occupational classification as another by referring to the DOL’s SOC system. USCIS officers also consider multiple factors to conclude if two jobs are considered to be in similar occupational classifications for porting purposes (see above question for definition of “porting”). USCIS officers may compare factors including, but not limited to:

• The job duties of both positions


• The SOC code from the Immigrant Petition for Alien Worker (Form I-140) and the appropriate SOC code for the new position


• The wages associated with each position

USCIS officers will view the totality of the circumstances to determine if the two jobs are the same or similar for porting purposes.

What is an “occupational classification”?
A1. The Department of Labor (DOL) uses the Standard Occupational Classification (SOC) system to group and classify jobs and occupations. The purpose of the SOC system is to classify workers into occupational categories to organize occupational data. The SOC system covers all occupations where work is performed for pay or for profit. Occupations are categorized based on the type of work performed. Additionally, certain occupations are also classified based on the skills, education and training required to perform the job.

The SOC system is organized using codes, which generally consist of six numerical digits. For example, the SOC code for a stonemason is 47-2022.

• [47]-2022: The first two digits, “47” represent the major group, which includes all construction and extraction occupations.


• 47-[2]022: The third digit, “2” represents the minor group, which includes all construction trade workers.


• 47-2[02]2: The forth and fifth digits, “02” represent the broad occupation, which includes brickmasons, blockmasons, and stonemasons.


• 47-202[2]: The sixth digit, “2” represents the detailed occupation, which only includes stonemasons.

47-0000 Construction and Extraction Occupations
47-2000 Construction Trades Workers
47-2020 Brickmasons, Blockmasons, and Stonemasons
47-2022 Stonemasons

No occupation will be assigned to more than one category at the lowest level of the classification (sixth digit). A USCIS memo titled, Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) (December 27, 2005 AC21 Memo) instructed USCIS officers to consider the Dictionary of Occupational Titles (DOT) code as part of the same or similar occupational classification analysis. The DOT has been replaced by the Occupational Information Network (O*NET) under the sponsorship of DOL’s Employment and Training Administration (ETA). The O*NET system relies upon the SOC codes.

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

It is possible. The fact that you have left your previous employer prior to your I-485 pending for 180 days is not the basis, by itself, for denial of your portability case. The reason is that adjustment of status is based on prospective employment, rather than an existing one. However, it is still a high-risk move. Your case will be denied if any of the following happens:

• Your I-140 is withdrawn by your employer before your I-485 reaches 180 days; or


• Your I-140 is denied by the USCIS at any time; or


• Your approved I-140 is revoked at any time, except when it is based on a withdrawal request from your employer (not fraud related, for example) submitted after your I-485 has been pending for 180 days; or


• You fail to prove that a bona fide employment relationship existed at the time of filing. So leaving too early obviously makes it more difficult to establish your case, especially if your employer is no longer willing to cooperate.

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

You should, to avoid any potential headaches. If an adjudicator has no knowledge of your using AC21 portability, and there is something wrong with your I-140 (revoked, for example), he or she is required to issue a Notice of Intent to Deny (NOID) your I-485. There have also been cases when applicants responded to NOID with necessary documents to prove their eligibility for AC21, but 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.

Is there an AC-21 form I can use to notify USCIS?

No, USCIS does not provide an official AC-21 form. Instead, you or your attorney should send a letter to the USCIS service center explaining that you have invoked AC-21 portability provision. Since there is no AC21 application or petition to file, hence no formal instructions, you may decide what supporting documents to send with the letter, such as your job offer, to demonstrate your eligibility.

My employer isn't happy, can they do something to my I-140?

Yes, because an I-140 is the property of your employer, not yours. However, there is not much an angry employer can do if 1. the I-140 has already been approved; AND 2. your I-485 has been pending for more than 180 days.

Otherwise, there are three scenarios where your employer may be able to ruin your case:

• 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

How to calculate the 180 days for AC21 eligibility?

First of all, it is referring to calendar days, not business days. Secondly, the clock starts with the "Received Date" of your I-485 application, as indicated in your receipt notice.

May I use AC21 portability multiple times or only once?

Neither AC21 act nor USCIS memos addressed this issue specifically. Based on the wording of the law, it appears that as long as you meet the eligibility requirements each time, you should be able to port your I-140 more than once. There indeed were reported cases that USCIS approved I-485 applications despite multiple job changes. However, USCIS may issue new guidance on this subject in the future that is different from their current practice.

It is worth mentioning that frequent job changes may raise concerns of an adjudicator regarding the "permanency" of your job offers. Although you would have no choice when facing lay-offs or a company shut-down, you should be aware of the negative impacts of "job hopping."

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

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

Do I have to have the same job title?

Not necessarily. USCIS understands that different companies may use different titles for essentially the same position, and will make a determination on a case-by-case basis. However, it makes everyone's life easier if you have identical job titles.

What if my new job pays less?

The Yates Memo (2005) explained that a 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. However, a significant discrepancy in salary may be a factor in determining whether the new job is "same or similar."

As per recent memo on less salary, different job location and different job tittle

The December 27, 2005 AC21 Memo states that a discrepancy between the wages of two jobs may be used to decide if the two positions are the same or similar, but the memo also states that a difference in the wages of the two jobs cannot be used as the sole basis for denial in adjustment of status portability cases. Can USCIS provide further explanation on how wages are used to determine whether two jobs are in the same or similar occupational classification? A4. Section I, Question 3 from the December 27, 2005 AC21 Memo provides USCIS officers with the flexibility to consider a “substantial discrepancy” in the wages offered in two positions to assist them in deciding if the two jobs are in the same or a similar occupational classification. A “substantial discrepancy” in the wages of the two jobs may be a contributing factor in a denial when the evidence is considered in its totality. However, a USCIS officer should not deny a case solely because a second position pays more or less than the original.

Section 1, Question 5 from the December 27, 2005 AC21 Memo references a “difference” in the wages to inform both USCIS officers and the public that a difference in wages should not be used as the sole basis for a denial. This means there can be an allowance for normal raises that occur through the passage of time to account for inflation and other factors such as higher rates of pay in different metropolitan locations.

Can I accept a different position or receive a promotion from my employer and remain eligible to adjust my status to permanent residence?
A5. USCIS will evaluate these situations on a case-by-case basis. The job duties for each position, the SOC codes for each position, and any differences in the wages will be the determining factors as to whether you remain eligible. Regardless of whether the new job is considered a demotion, a lateral move or a promotion within the company for which the beneficiary is employed, the job duties must be sufficiently similar. USCIS officers will view the totality of the circumstances in light of the congressional intent, expressed in INA section 204(j), as enacted by 106(c) of AC21, to facilitate job mobility within the same or similar occupational classification for qualifying aliens with long-pending adjustment applications.

Does my new employer have to prove "Ability to Pay?"

USCIS will not request proof of "ability to pay" from your new employer. However, they may issue RFE to verify the legitimacy of your new employer, as well as your job offer. While adjusting your I-485, USCIS will also evaluate the potential of you becoming a public charge. So it is essential that your new employer has relevant materials ready, which may include the same documents required as proof of "ability to pay."

Sample Letters for USCIS to invoke AC21-portability

Cover Letter

U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Vermont Service Center
75 Lower Welden Street
St. Albans, VT 05479-0001

RE: I-485/ Additional Documentation Submission for "Your name" Receipt No EAC-xx-xxx-xxxx (A# xxx xxx xxx) and Derivate Applicant ""Your wife's name Receipt No EAC-xx-xxx-xxxx (A# xxx xxx xxx)


Dear Sir/Madam:
Enclosed please find supporting letter for change of employer under American Competitiveness in the Twenty-First Century Act of 2000 (AC21) along with the supporting documents as stated below for "Your name" for Form I-485
Receipt No EAC-xx-xxx-xxxx (A# xxx xxx xxx).

1. Supporting Letter
2. Employment Verification Letter from New Employer (Name of the employer).
3 Copies of the Pay stubs from new employer (i sent two pay stubs (one month)
4. Relevant portions of AC21
5. Memo on August 4 th 2003 from William R Yates
6. Copy of I-485 filing receipt notice for your name
7. Copy of I-140 approval notice.
8. Copy of I-485 filing receipt notice for your wife's name

I hope the enclosed documents will comply with the required information needed to make an expedited decision on my Form I-485. If you have any questions or need additional information concerning the above, please do not hesitate to contact me.

Thank you in advance for your kind attention and cooperation in this matter.

Sincerely,
Name, address and Phone no

Supporting Letter

U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Vermont Service Center
75 Lower Welden Street
St. Albans, VT 05479-0001

RE: I-485/ Additional Documentation Submission
Applicant: Your name
Receipt Number#: EAC-xx-xxx-xxxx
Alien#: A xxx-xxx-xxx

Dear Sir/Madam:

This letter is in regards to the I-485 application for adjustment of status filed on my behalf.

On Date, my I-485 application was filed based on pending Form I-140
by my former employer, XXX Inc with Receipt Number EAC-xx-xxx-xxxx.My I140 was approved on Date. On Date, I began lawful employment with XXX inc, pursuant to the Employment Authorization Document (EAD) issued on my behalf in conjunction with my I-485 application. I am currently employed in the same field as my previous employer, XXX Inc in a similar position and with same job duties. (Attached for your reference is Employment Verification Letter from XXX Inc)
The American Competitiveness in the Twenty-First Century Act of 2000 AC (21) allows for a change of employer on any I-485 Adjustment of Status Application that has been pending for 180 days or more, without the need to file a new I-140 petition. (Attached for your reference are relevant portions of AC21.) On Date, pursuant to these guidelines, I changed employers from XXX Inc. to XXX Inc, as my I-485 had been pending beyond the 180-day period required by law.
According to the Memo released by William R Yates on August 4 th 2003 the I-140 is valid if it is approved and form I-485 has been pending for more than 180 days even when the employer withdraws the approved Form I140. (Attached for your reference is the Memo on August 4 th 2003 from William R Yates)
In light of the above, I maintain that I have lawfully changed employers pursuant to the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) statute, and that my I-485 application remains valid. I respectfully request that your office should adjudicate my I-485 accordingly under AC21 provisions. Should you have any further questions, please do not hesitate to contact me.
Thank you in advance for your kind attention and cooperation in this matter

Sincerely
Name , Address and Tele phone no

EMPLOYMENT VERIFICATION LETTER

[ON COMPANY LETTERHEAD]

Date

Sandra T. Bushey
Acting Center Director
U.S. Citizenship & Immigration Services
Vermont Service Center
75 Lower Welden Street
St. Albans, Vermont 05479-0001


Re: Employment Verification for YOUR NAME


Dear Ms. Bushey:

This letter is to verify that NEW COMPANY Inc. seeks to employ YOUR NAME as OF [INSERT DATE] as a TITLE (NOT SAME AS LC). His annual salary will be $ xxx,xxx. ( ALMOST 70 % MORE THAN MENTIONED SALARY IN LABOUR)

The duties of the TITLE position at New Company , Inc. are consistent with those described in the Application for Alien Employment Certificate filed by Old employer , Inc. on Mr.LAST NAME’s behalf and, subsequently approved by the Department of Labor on DATE. They include JOB DUTIES ( IN MY CASE THEY WERE WORD TO WORD MATCH FROM LABOUR.)

Although his employment is at will, this is a regular full-time position. We expect to continue to utilize his skills in this position after approval of his form I-485

If any additional information is required, please contact me at NO.


Very truly yours,

NEW COMPANY , Inc.


NAME
Senior Employment Specialist

Other Attachments

Relevant portions of AC21
Memo on August 4 th 2003 from William R Yates

Please note this article is put together by taking information from number of resources on internet.

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