AC21 Green Card Portability

A foreign national may wait years to receive an employment-based green card. While the green card process is employer-specific, a particular section of the American Competitiveness in the Twenty-first Century Act of 2000 (frequently referred to as AC21) allows a foreign national to change employers without having to start the employment-based green card process over again, in certain circumstances. Read on to see if you may qualify!

What are the requirements for AC21 I-140 portability?

  1. The I-140 petition must be approved
  2. The I-485 application for permanent residence must have been pending 180 days or more, and
  3. The foreign national must be moving to the same or similar occupational classification.

What is the same or similar occupational classification?

USCIS will consider the following factors in determining whether the new job is the “same or similar occupational classification” as the one listed on the I-140 petition:

  1. Job description/job duties
  2. Whether the positions have the same SOC/DOT codes
  3. Whether there is a big difference in salary offered between the I-140 position and the new position

What if my salary has increased?

A change in salary alone is not basis for denial of an AC21 request. If there is a significant change in salary, USCIS may take this into consideration when determining whether the jobs are the same or similar.

What if my previous employer withdrew the I-140 petition?

If your previous employer withdraws the I-140 petition you can still port to new employment, as long as the I-485 had been pending at least 180 days when the I-140 petition was approved. If USCIS revoked the I-140 petition based on fraud or because the petition was not approvable when filed, it may not be possible to use the I-140 petition for AC21 purposes.

Do I have to maintain H-1B status if I am porting using AC21?

If you have a valid EAD (employment authorization document), you should speak with an experienced immigration attorney about whether you should also maintain H-1B status.

Can I change jobs using AC21 more than once?

There is no law or USCIS guidance that prohibits a foreign national from submitting more than one AC21 request.

Can I port to self-employment?

It is possible to port to self-employment, as long as the position is in in the same or similar occupational classification, and as long as the other requirements, outlined above, are met.

What documents are required to file an AC21 notice?

The AC21 notice to USCIS typically includes the following documents:

  1. Letter notifying USCIS of the intent to change employers pursuant to AC21green card portability provisions
  2. Copy of the labor certification, specifically the job description portion
  3. Copy of the I-140 approval notice
  4. Copy of the I-485 receipt notice
  5. Offer letter from the new employer, outlining job title, job duties, and salary offered

The Sumner Immigration Law team is very familiar with AC21 issues and is happy to answer questions or to represent you in filing an AC21 notice. Simply email to get started.

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