AC21 Frequently Asked Questions (Part 2 of 2) : January 2008 Update
Posted Jan 25, 2008

[The first half of this list of questions and answers, published January 18, 2008, is available on MurthyDotCom.]
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Wage Difference Between Original LC and New Position / Job
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Question 7. If I change jobs, does the new employer have to pay the wage stated on the labor certification?
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No. This was explained in the June 2001 Interim Guidance Memo and then reaffirmed in the May 2005 memo. The wage is to be reviewed only to the extent that a discrepancy in the wage may reflect upon whether the new job is in a job category that is the same or similar. Additionally, the wage is relevant to demonstrating that the individual will be self-supporting and will not become a "public charge."
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We note that, at the Murthy Law Firm, we have seen many instances of significant changes in wages that still meet the AC21 requirements. These changes include both raises and salary reductions. Virtually identical jobs may substantially vary in terms of pay. Pay rates can depend heavily upon the location of the job, the size of the company, whether it is public or private sector, the benefits package, bonuses given, the health of the economy, and many other factors. The USCIS, however, has mentioned that a great variation in salary or pay could indicate that the job duties are no longer similar and this could pose a potential problem in some cases.
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Same Geographic Location Not Required for New Position / Job
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Question 8. Does the new job have to be in the same geographic location?
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No. This was set out in the June 2001 Interim Guidance, and confirmed in the May 2005 memo. The Murthy Law Firm also received an Administrative Appeals Office (AAO) decision in a case we filed, again confirming this matter. There are no geographic limitations on the new employment position under AC21.
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Method of Notifying USCIS on AC21 Change of Employer / Job
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Question 9. How do I exercise the portability provisions? What do I have to do?
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AC21 is a law that does not have regulations implementing its provisions. As such, there are no specific legal requirements as to what, if anything, has to be filed when AC21 is used. There are no forms, applications, or petitions to file. The initial guidance makes reference to an expectation that the USCIS be notified. This expectation again was reiterated in an August 4, 2003 memo, reported to readers in our Aug 12, 2003 article, BCIS Memo on I-485 Portability after I-140 Revocation, available on MurthyDotCom.
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It has been the practice of the Murthy Law Firm to notify the USCIS regarding the use of AC21and, generally, have not found it to generate automatically higher rates of interviews or requests for evidence (RFEs). We think that this view has been confirmed over time and that it is the safest approach. Our tactic with AC21 cases is to take over representation in the I-485 and act as the attorney for the remainder of the case. Included in work on the case is a notification of the use of AC21, along with proof that the case qualifies under the AC21 requirements.
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Promotion / Transfer with Current GC-Sponsoring Employer Generally Allowed
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Question 10. Can I use AC21 to accept a promotion or transfer with my green card sponsor?
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Yes. AC21 does not require that one leave the sponsoring employer. It gives additional flexibility to the individual and the employer to permit promotions or other job changes within the company. These promotions or job changes can be used to continue the same green card case under AC21, as long as the new job meets the same or similar job classification requirement.
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EAD to Use AC21 Portability Not Required
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Question 11. Do I have to use an EAD to use AC21?
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No. While many change their employers using the Employment Authorization Document (EAD), this is not the only way to make this change. The new employer could file an H1B extension for an eligible individual, and the H1B could be used to work on the new job. This is often possible even after the expiration of the individual's 6-year H1B period, since, under a USCIS opinion letter, the law permits extensions beyond the 6-year limitation with employer "B" based on a qualifying green card case previously filed with employer "A."
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Question 12. Can I change jobs more than once using AC21?
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Yes. AC21 does not contain any limitations regarding multiple job changes. Given the extreme retrogression of cutoff dates for nationals of certain countries, it may be many years before certain I-485s are eligible for approval. This is particularly true of individuals with more recent priority dates, and those from backlogged countries, such as India. Thus, the possibility of more than one job change is quite likely, including promotions with existing or new employers. There are also times when the economy is uncertain and layoffs occur. It may be prudent, however, to try to avoid repeated employment changes.
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Conclusion
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We have all learned a lot about AC21 since it became law in October 2000. There have been USCIS memos clarifying many details, as well as many cases through which we have gained valuable insight into the USCIS's interpretations and applications of AC21. Many are anxiously counting the days from the filing of their I-485s, awaiting AC21 eligibility. Some employers may experience the loss of valuable employees; other employers, perhaps offering better employment terms and conditions, may find that they are able to hire needed foreign workers without having to sponsor their green cards.