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AC21 Frequently Asked Questions
Posted
May 14, 2002
We at The Law Office of Sheela Murthy receive many questions about the
portability provisions of The American Competitiveness in the Twenty-first
Century Act (AC21) for Adjustment of Status applicants. These questions
arise daily in consultations with our clients and on the MurthyForum, as
well as in our weekly MurthyChat. What follows are Frequently Asked
Questions and their answers under the actual law with INS' present
interpretation. It is important to keep in mind that INS is not bound by
their present interpretation and position, although it is likely that, when
finally issued, their regulations will be consistent with these earlier
interpretations. To provide some comfort and support, Mr. William R. Yates,
Executive Associate Commissioner at INS Headquarters, Washington, D.C., has
advised us at various meetings that a good-faith and reasonable
interpretation of the AC21 should not and will not subject one to penalties
for violations of the law.
For additional background, there are a number of articles we have written on
AC21 including INS Finally Issues its Initial
Guidance on AC21 in July 2001.
Essentially, AC21 allows for approval of employment-based adjustment of
status applications through an employment offer other than the one contained
in the labor certification and I-140, provided certain requirements are met.
Those eligibility requirements under section 106(c) of AC21 are that
(a) the
I-485, Application for Adjustment of Status, must be pending (unadjudicated)
for 180 days or more; and (b) the new
job must be the same as, or similar to, the job described in the labor
certification and I-140 petition. As of this March
2002 writing, the INS has still not issued any regulations under
AC21. Therefore, much uncertainty still remains with respect to many matters.
The following questions and answers are based on those frequently posed to
the Attorneys and Paralegals at The Law Office of Sheela Murthy, P.C. As a
courtesy to our clients and the immigrant community, we generously share
this useful information.
Question 1 : Is it the receipt date or the
notice date that governs the counting of the 180-day period under AC21?
TOP
Based upon the wording of the law and the INS interpretation of AC21, the
180 days should be counted from the date the INS receives the filing at one
of its Service Centers. This is not the notice date, which reflects the
several days or weeks the INS takes to issue the Receipt Notice. The 180
days are calendar days, not business days.
Question 2 : I lost my job before the
180-day period. Can I still use portability?
TOP
Quite possibly, provided the I-485 remains in pending (unadjudicated) status for at
least 180 days. It is the I-485 processing time that is important, not when
the beneficiary changes positions. This is because the "green
card" (GC) is based upon a future job offer. The person is not required
to have worked for the GC-sponsoring employer prior to filing or obtaining
the GC. Accordingly, it appears the AC21 law did not intend to change the prior law,
which only requires a future job offer with respect to the GC sponsorship in
employment-based cases. Please refer to the
disclaimer at the end of this page, since, at the time of this
writing, the regulations have not been published.
Question 3 : I never worked for my
sponsoring employer. It was a future job offer. Can I use AC21 portability?
TOP
Yes, under the same circumstances as Question 2.
Question 4 : My new job has a different
title, but the same basic duties as the job described in the labor
certification. Will that work?
TOP
It should, though INS makes a case-by-case determination. The requirement of
"same or similar" is determined by the description of the
essential job duties. The title may change, as different companies use
different titles. The INS position appears to be that the core job duties
should be essentially the same or similar in order for the INS to approve
the I-485 with a new employer.
Question 5 : What is meant by "same or
similar" job?
TOP
The position must have the same essential job duties. For example, in the
computer field the position can use different software and computer
languages but it must require the same basic functions. A programmer is
still a programmer, even if using different languages or working on a
different application. A baker is still a baker, whether making bread,
rolls, muffins, or croissants. The narrowest interpretation would consider
the position to be under the same category in the Dictionary of Occupational
Titles or the O*NET published by the Department of Labor. This narrow
interpretation is the INS position as mentioned in the June 2001 INS Interim
Guidance on AC21. However, we have lobbied for a broader and more liberal
interpretation with senior INS officers at various meetings. In practice,
the INS has agreed that the AC21 law does not limit it to an identical DOT
or O*Net code and has approved many cases throughout the local INS offices
and the INS Service Centers in which the new position does not match the
earlier job with respect to DOT Code or O*Net classification.
Question 6 : If I change my job, I am afraid
my employer will "do something" to end my immigration case. Am I
in danger?
TOP
Perhaps. While your I-485 is your own application and the employer cannot
withdraw it, the entire application rests on the I-140, which is the
employer's application. Under previous law, the employer controlled the
I-140 throughout the process. Withdrawal of the I-140 meant denial of the
I-485. This matter has not been addressed under AC21. While it seems that
the employer should lose control of the I-140 after 180 days in order to
make AC21 fully effective, this issue needs further clarification. At this
point, it appears that if the employer were to withdraw the I-140, the INS
possibly could issue a notice to the beneficiary with respect to the
processing of the I-485. The beneficiary might then have the opportunity to
respond by showing another job offer. INS has not provided specific
instructions or regulations as to how this type of situation should be
handled in light of AC21.
Question 7 : If I change jobs, does my
sponsoring employer have to withdraw my I-140 or tell INS?
TOP
No. Unlike the H-1, where the employer must inform the INS of termination of
employment, there is no affirmative requirement to tell the INS about
changes in employment for I-140 beneficiaries or to withdraw the I-140.
Question 8 : If I change jobs, does the new
employer have to pay the wage stated on the labor certification?
TOP
No. As explained by the INS in the June 2001 Interim Guidance Memo, the new
job does not have to be at the same wage level, nor is there any requirement
that the new position pay a rate equal to the "prevailing" wage.
The only restrictions are that the pay must be sufficient to demonstrate
that the person will be self-supporting and not become a "public
charge."
Question 9 : Does the new job have to be in
the same geographic area as the job in the labor certification?
TOP
No. Again based on the June 2001 INS Guidance, there are no geographic
limitations on the job.
Question 10 : How do I exercise the
portability provisions? What do I actually have to do?
TOP
AC21 does not state that notification to INS is required. The current INS
guidance on the issue says that it is "expected" that a letter
will be sent to INS. There is also no particular format for sending a letter
advising of the change in jobs.
Lawyers may propose a variety of approaches in these circumstances. Often
INS sends a Request for Evidence (RFE) as a routine part of the case, prior
to final decision. The RFE may ask for updated employment information,
including an employer letter and possibly pay stubs. It would be sufficient
to inform the INS at that point of the new employment offer. Submitting
information in response to an RFE rather than sending it unsolicited has the
advantage that the RFE contains a tracking bar code to ensure that the
information is placed into the file. Information submitted without an RFE
often receives low priority at the Service Center and may languish in a pile
of unsorted correspondence for several months or longer.
Still, it may make sense to send in the information after the 180-day point
even if INS has not issued an RFE. That way, in the event INS does not send
an RFE, the applicant can be sure that the information was provided prior to
the approval of the case. This method may avoid confusion as to exactly
which employment offer formed the basis of the approval. Of course, delays
in matching up routine mail with a particular file may lead to the issuance
of an RFE, regardless. In this case the information must be provided again.
Disclaimer : It is important to reiterate that there is a caveat to the
responses to these FAQs: none of the present INS interpretations is binding
on the agency when they finally issue regulations, although one may be
protected for a reasonable and good-faith interpretation of the law.
However, what is reasonable and in good faith is a matter of interpretation.
Additionally, there is always the risk with portability that if INS approves
or adjudicates the case within 180 days or less, the person would be
required to work for the GC sponsor and could not benefit from the liberal
language of AC21.
We will continue to follow developments in the interpretation and
implementation of AC21, as we realize that it affects many of our clients
and readers who are directly impacted by this important law, which has
changed the face of U.S. employment-based immigration law.
©
The
Law Office of Sheela Murthy, P.C.
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