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, or a pending I-485 (application for adjustment of status).

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It took 16 years for the USCIS to issue regulations to fill in the gaps and ambiguities in AC21, but it finally did so in January 2017. Before that the agency issued several policy memos that explain who is eligible to "port."

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I-140 Portability

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"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.

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Normally, 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.

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On the other hand, the approved labor certification is almost always portable after the 180th 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:

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• The I-140 is withdrawn by the employer (after 180 days).

• The new job is in a different geographic location.

• The new job is self-employment. (!)

• The I-140 is not approved yet.

• The employer goes out of business (after 180 days).

• The employee stops working before 180 days, or never worked for the employer! (However, the applicant must still prove that the job offer was in good faith, that it existed until the 180th day, and that at the time the I-140 was filed both the employer and employee intended that the described employment would take place at some time in the future).

• The new salary is different (however, a huge salary discrepancy may lead the USCIS to conclude that the new employment is not in the same or similar occupation).

• The new employer cannot demonstrate the ability to pay the salary. (In contrast, the original employer must demonstrate the ability to pay the salary from the time the labor certification was filed until the approval of the I-485).

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On March 18, 2016, the USCIS issued a memo that clarifies the "same or similar occupational classification" for the purposes of I-140 portability. Click here for the text of that memo.

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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, the new job, and current status of the I-140/I-485, and there should be a comprehensive analysis and strategy in place before leaving the initial job.

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H-1B Portability

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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. This H-1B portability applies even after the initial H-1B status expires, if the new H-1B petition is filed before it expires.

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For example, an employee who works for Company A, with H-1B status valid to June 1, 2021, may get a job offer from Company B in May 2009. If Company B files an H-1B petition by overnight courier on May 18, 2021, the employee can begin working on May 19, 2009. 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 $2500 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 ultimately 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 the employment 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.

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Extension of H-1B Status Beyond 6 Years

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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 5th year in H-1B status. Second, it can be extended if the employee cannot file for or complete adjustment of status because the immigration quota is not yet current.

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In order to extend H-1B status beyond six years, the H-1B petitioner does not have to be the employer that filed the labor certification. The employee is entitled to continue to extend the H-1B status until:

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a) The labor certification is denied or withdrawn;

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

d) The I-485 is denied or approved.

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An H-1B employee who is working for Company A (which filed a labor certification before the end of the 5th year), can transfer to Company B, and continue to extend H-1B status beyond the 6th 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, and perhaps even to pursue the labor certification to completion.

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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 5th 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). The AAO often takes over a year 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.

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An employee may be able to resume H-1B status beyond the six-year limit even though he or she is no longer in H-1B status or is outside of the United States.

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"One-Time Protection"

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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 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.

 *The information contained in this article should not be used as a basis for taking action or for failing to act. Instead, it is intended to educate the firm’s clients and members of the public generally, and to provide a background for directing case strategy in collaboration with a competent and experienced immigration attorney. No attorney / client relationship is created by the information provided, and even the firm’s existing clients should not take any action unless they are instructed to do so by an attorney. Information on this site may be outdated, and you should seek the advice of an attorney to determine current law or policy.

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To obtain representation call (415) 248-3100 or send an email to jbach@immilaw.com.

 

Mr. Bach is Certified as a Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization, and is a Commissioner of the California State Bar Immigration and Nationality Advisory Commission.

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