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-485 portability?

1. The I-140 petition must be approved, or if the I-140 petition is still pending, it must ultimately be approved;
2. The I-485 application for permanent residence must have been pending 180 days or more at the time that USCIS receives the request to port;
3. The foreign national must be moving to the same or similar occupational classification;
4. The I-485 applicant must make a request to port and submit Form I-485J to USCIS.

What is the same or similar occupational classification for AC21 portability?

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

1. A description of the job duties;
2. The necessary skills, experience, education, training, licenses, or certification required for the new job;
3. Whether the positions have the same SOC codes (note this is just one possible consideration);
4. The wages offered for the new job.

What if my salary has increased or I have been promoted?

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. Likewise, USCIS may approve a portability request even if there is a career progression if the person is responsible for managing the same or similar functions of their original job or if they are managing individuals whose jobs are in the same or similar occupations as the original job.

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 portability?

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. Generally speaking, we recommend that clients maintain the underlying nonimmigrant visa status until the green card is approved, but every case is different and your case may require a different strategy.

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. In addition, USCIS will look at whether the new employer and job offer are legitimate, whether the I-140 petition represented a true employment opportunity, and the intent of the beneficiary when the PERM labor certification was filed.

What documents are required to file an AC21 portability notice?

To make an AC21 green card portability request, you must file Form I-485J with USCIS. Speak with a qualified immigration lawyer to come up with a plan in terms of timing, but keep in mind that if USCIS approves your green card, and you have changed jobs without submitting the portability request, USCIS could later look into whether your green card was properly granted.

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 esumner@sumnerimmigration.com to get started.