By James A. Bach

"AC21" was a law passed by Congress in 2000 to avoid immigration penalties that would otherwise be caused by delays in USCIS processing of applications for H-1B and green card status based on employment.

Essentially, AC21 allows an employee to change jobs without giving up H-1B status, an approved labor certification, a pending I-140 (immigrant visa petition based on employment) or a pending I-485 (application for adjustment of status).

Since the law passed it has been unclear in many circumstances whether a person could change jobs without losing H-1B status or the benefits of an approved labor certification.  A May 12, 2005 USCIS Memorandum addresses many of those uncertainties.

"Portability" in the context of AC21 refers to the ability to change employers without invalidating: 1) H-1B status, 2) an approved labor certification, or 3) an approved I-140.  A green card (i.e., I-140/I-485) applicant may have invested many years seeking the labor certification and waiting for the USCIS to process the green card applications.  Portability can enable the move to another job without requiring the applicant to  start all over again from the beginning.

The employee will lose all of the benefits of the labor certification if he or she loses the underlying job (i.e., quits or is fired) before 1) the labor certification is approved, or 2) within the first 180 days after filing the I-485.

On the other hand, the approved labor certification is almost always portable after the 180^th day after filing the I-485.  In that case, the employee can continue to use the labor certification and/or the approved I-140 to become a permanent resident as long as the new job is in the "same or similar occupation."  That is true even if:

The May 12^th Memo clarifies that in most cases an employee can change jobs 180 days after filing the I-485, without having to get a new labor certification or file a new I-140.

However, before changing companies, employees should get the advice of an attorney who is familiar with the old job, new job, and current status of the I-140/I-485.  There are still some traps for the unwary.  For example, the May 12^th Memo does leave open the possibility of denial of the I-140 if a satisfactory response to an RFE (Request For Evidence) is not received by the USCIS.  Since the RFE is normally sent to the old employer (not the employee), there is some possibility that the I-140 and I-485 could be denied because the I-140 was not approvable within the first 180 days.  If possible, there should be a comprehensive analysis and strategy in place before leaving the initial job.

AC21 also provides for changing employers and retaining H-1B status as soon as the H-1B petition for the new company is received by the USCIS.  The May 12^th Memo makes it clear that this H-1B portability applies even after the initial H-1B status expires, if the new H-1B petition is filed before it expires.

For example, an employee who works for Company A, with H-1B status valid to June 1, 2005, may get a job offer from Company B in May 2005.  If Company B files an H-1B petition by overnight courier on May 18, 2005, the employee can begin working on May 19, 2005.  If the employee then decides to work for Company C on June 15, she can do so, even though it is past the June 1 expiration date and even though the Company B petition is not yet approved (as long as Company C submits an H-1B petition by June 15).  This would be a good case for Premium Processing (i.e., paying the USCIS an additional $1000 for expedited processing), because if Company B withdraws its H-1B petition before the Company C petition is approved, the "bridge" would be broken, and the H-1B status would no longer be portable.

Premium Processing is also appropriate when changing employers if there is a question as to whether the H-1B petition with the new company will be approved.  For example, there may be an issue as to whether the new job is a professional position that will support H-1B status.  Portability applies only if the new H-1B petition is approved.  If it is denied, the denial is retroactive to the date of filing.  Although the portability laws provide that the employment with the new company is lawful until the date of denial, once it is denied it is no longer authorized and the employee is out of status.  If there is a possibility of denial, it might therefore be advisable to wait until the new H-1B petition is approved, rather than rely on the portability provisions.  In my experience though, most H-1B transfers are ultimately approved, and it is a rare case in which the H-1B portability provisions of AC21 should not be used.

There are two bases for extending H-1B status beyond the normal limit of 6 years.  First, it can be extended if a labor certification or I-140 is filed by the end of the 5^th year in H-1B status.  Second, it can be extended if the employee cannot file for or complete adjustment of status because the per-country quota (i.e., for China, India, and the Philippines) is not yet current.  (Note that under current law, there appears to be no relief from the 6-year limit if the obstacle is the worldwide quota: see, my March 2005 Newsletter).

The May 12^th Memo provides clarification regarding both bases for extending H-1B status.  Over the past few years, there has been a persistent and vexing question as to whether an H-1B employee can change employers and still continue to obtain extensions beyond six years, based on a labor certification filed by the first employer.  The Memo makes it clear that the H-1B petitioner does not have to be the employer that filed the labor certification, and also that the employee is entitled to continue to extend the H-1B status until:

b) Another employee is substituted into the labor certification;

c) The I-140 is denied or withdrawn; or

Logically then, an H-1B employee who is working for Company A (which filed a labor certification before the end of the 5^th year), can transfer to Company B, and continue to extend H-1B status beyond the 6^th year, as long as the labor certification (filed by Company A) is still pending. Of course, that would require Company A’s cooperation not to withdraw the labor certification or substitute another employee, and perhaps even to pursue the labor certification to completion.

The May 12 Memo also clarifies that an I-140 remains pending until the conclusion of an administrative appeal.  By way of example, assume that the basis for extending the H-1B status is an Outstanding Researcher or National Interest Waiver petition (I-140) filed before the end of the 5^th year in H-1B status.  If the I-140 is denied, the petitioner has 30 days to appeal the decision to the Administrative Appeals Office (AAO).  Currently, the AAO is taking eight months to process such appeals. The employee could extend his or her H-1B status beyond six years at any time before a final decision is made on the appeal. The extension would be granted for a period of one year, even though the appeal had been pending for seven months.

"One-Time Protection"

H-1B extensions based on the unavailability of the per-country quota would normally be requested for a period of three years.  Although AC21 itself refers to "one-time protection," the May 12 Memo makes it clear that the USCIS will grant additional extensions if three years is not enough time for the quota to become current.  In order to extend H-1B status based on the per-country quota, the I-140 (not just the labor certification) must be approved.  Currently only those from India, China, and the Philippines are affected by the per-country quota, but Mexico may soon be added to that list.

We are expecting that the relatively fast PERM labor certification process (which often can be completed in less than four months) will reduce the need for H-1B extensions beyond the 6^th year.  However, clouds gather on the horizon in the form of oversubscription of the employment-based immigration quotas, and there may be an increasing need to seek three-year extensions based on the per-country quota.

Copyright 2005 Law Offices of James A. Bach