AC21 Portability and Retrogression : More Detailed Analysis  
Posted Mar 03, 2006
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Retrogression is creating lengthy delays in the green card process for many. At the Murthy Law Firm, we continue to receive queries from I-485 applicants regarding the advisability of changing jobs under the portability provisions available under the American Competitiveness in the 21^st Century Act (AC21). Our November 4, 2005 MurthyBulletin article, AC21 Portability and Retrogression, available on MurthyDotCom, addresses this topic. The information in that article remains valid at the time of this writing. With questions on this matter continuing to reach our firm, however, a further explanation of some additional provisions is provided for the benefit of our MurthyDotCom and MurthyBulletin readers.
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Portability Applies to I-485 Applicant without Current Priority Date
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AC21 portability is generally available to an individual who is the beneficiary of an approved I-140 and whose I-485 has been pending at least 180 days. The benefits of AC21 portability are available to any otherwise qualified individual, even if there is not an available visa number for his/her case. As explained in our May 27, 2005 MurthyBulletin article, Yates May 2005 Memo on AC21 and I-140s, a USCIS memo on AC21 issues specifically states that AC21 portability remains available to an I-485 applicant who is impacted by retrogression. As long as the person had previously filed the I-485 when the priority dates were current and that I-485 remains pending, one does not need to have a current priority date in order to change jobs under AC21. Given that some I-485 applicants may be retrogressed for several years, particularly those in the EB3 classification with recent priority dates, this ability to change jobs may be very useful in allowing individuals to progress in their careers or to find new employment in the event of a lay-off. As with any major decision, it is important to be aware of the potential risks involved before changing jobs.  
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AC21 Allows Multiple Job Changes
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An applicant whose I-485 adjudication may be delayed by several years as the result of retrogression could be in the situation of having to change jobs not just once, but multiple times. The question of whether one may take advantage of AC21 portability more than once and still obtain the green card approval is neither addressed in the AC21 law, nor in any USCIS policy guidance. It would appear that, provided the basic requirements for AC21 portability are met, one would be eligible to change jobs or employers multiple times pursuant to AC21. Based on our experience to date at the Murthy Law Firm, the USCIS seems to agree that porting more than once is acceptable and allowed under AC21. Potentially, this could be restricted via regulation or policy memo, however.
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AC21 requires as well that the applicant have a permanent (non-temporary) job offer as the underlying basis for the green card approval. If one has a history of bouncing from job to job, this could raise questions as to employment stability and whether the individual has a qualifying, permanent job offer. Therefore, when there is a choice with regard to changing jobs, employment stability and the potential for longevity with the new employer are valid concerns.
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Salary Considerations for the New Job
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Attorneys in our firm are frequently asked about the impact of a difference in salary when changing jobs under AC21. We are also asked what "same or similar" really means in order for one to be eligible under AC21 portability. USCIS policy memoranda, particularly the May 12, 2005 Memo referenced above, have been quite favorable on these matters. However, in that same memo, the USCIS stated that the forthcoming AC21 regulations "may take a more restrictive position than this memorandum." Therefore, while issues such as salary differences do not appear to be problematic at present, foreshadowing indicates that this could change when the regulations are released at some future date.
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When explaining the risk of potentially stricter AC21 regulations to I-485 applicants, we are frequently asked, "If I change jobs under AC21 and the regulations are released after that, they won't apply to me, right?" Unfortunately, this is not correct. While it is not possible to predict the content or effective date of any future regulations, they will likely apply at the time of adjudicating the I-485 application, and not just when the job change occurs. In a hypothetical example, if new regulations were to limit the percentage of acceptable salary difference, or prevent multiple portings, the officer adjudicating the I-485 could decide that the job change violates the regulations, even if the change occurred months or years before the new regulations were issued.
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I-140 Revocation and its Impact on Green Card Approval
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Finally, any AC21 applicant, whether impacted by retrogression or not, should be aware that if the petitioning employer revokes the I-140, this can cause complications, possibly including a denial. While the revocation of an I-140 petition by the employer should not cause a denial after one becomes eligible for AC21 portability, the procedures applied sometimes create problems.
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The USCIS stated in an August 4, 2003 memo that, if a sponsoring employer revokes an approved I-140 petition after the I-485 application has been pending for 180 days or longer, and there is no notification on file that the foreign national is using AC21 portability, the USCIS must then issue a Notice of Intent to Deny (NOID) the I-485. In order to prevent the USCIS from issuing a NOID, it is generally advisable for the applicant to notify the USCIS of the job change under AC21 as soon as possible.
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We at the Murthy Law Firm, however, have seen cases where, despite prompt and timely AC21 notification, the USCIS still erroneously has issued NOIDs. Since it is common for a NOID to have only a 30-day deadline for response, this must be filed promptly. Thus, if the NOID is not sent to the correct address or there is some other problem preventing a timely response, the case likely will be denied. While the denial sometimes can be overcome, this is obviously a serious problem that possibly requires filing a Motion, which can be draining both in terms of finances and the mental and emotional toll taken on the affected parties.
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At the Murthy Law Firm, we are aware that the USCIS has mistakenly denied the I-485 in some instances after the I-140 has been revoked by the original sponsoring employer. At such times the USCIS should have just issued a NOID. While a denial due to USCIS error can normally be addressed in a Motion to Reopen, it is obviously never a good situation, especially if the applicant and/or the family members do not have a backup nonimmigrant status, such as H1B or H-4. Without the backup status, each I-485 applicant will be immediately out of status upon issuance of the denial. Often all employment cards are no longer valid once the I-485 is denied, as well, causing an additional financial toll on a family.
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Conclusion - Deciding Whether or Not to Use AC21
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While certain risks do exist in using AC21 portability, it remains a very useful option for those impacted by retrogression and needing or wanting to change jobs. We have been guiding both individuals and employers wishing to take advantage of the portability provisions under AC21 since it came into effect. An overwhelming majority of I-485 applicants working with our firm have successfully obtained the green card simply by taking advantage of AC21's portability provisions.
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Before one changes jobs, we remind our readers that it is prudent to weigh potential risks against the benefits, and to assess one's backup plans before making this important decision. Because of the complexities involved and the ever-changing nature of AC21 guidance, it is also advisable to discuss the specifics of one's unique situation with an immigration lawyer who has considerable experience with AC21 cases. Ultimately, the decision will come down to one's comfort with a certain level of risk, and the depth of her/his desire (or need) to change jobs or employers. The Murthy Law Firm is available to those who may need guidance or help in notifying the USCIS of their decision to take advantage of AC21's portability provisions.