I-485 Cases using AC21 Portability Do Not Require Interview
Posted Jun 13, 2003

At The Law Office of Sheela Murthy, we hear from many of our clients and others who are anxious they may notify the BCIS "too early" that they have used the portability provisions under AC21 when switching to work for a new employer. They believe all AC21 cases are sent automatically for an interview. We are pleased to report that, while applicants with AC21 cases certainly may be called for an interview, there is no such automatic requirement for these cases. Our Office seen approvals for AC21 cases prompting neither issuance of Requests for Evidence (RFE) nor the scheduling of interviews. As an example, in May 2003 we received an approval for an AC21 case in which the BCIS was notified seven months earlier that our client was seeking approval under AC21. With proper documentation, it is entirely possible to obtain approval based on the filings alone, even when the I-485 applicant has taken advantage of the provisions under AC21.

Of course, no one can guarantee that any employment-based I-485 case will be approved without an interview. There may be some adjudicators at BCIS who are inclined to send AC21 cases for interviews. There are some instances, particularly those in which the individual does not appear to have a stable job offer, that may cause the case to be sent for an interview. Even if an applicant using AC21 is to be interviewed, however, it may reflect favorably if that individual promptly informed the BCIS about the job change and eligibility under AC21 for an I-485 approval.

As regular readers of MurthyDotCom and the MurthyBulletin are aware know, there are still no regulations interpreting AC21. As a consequence, there is nothing to indicate what happens if one waits until the I-485 is approved to notify the BCIS that s/he has used AC21. Under pre-AC21 law, a person had to work for the sponsoring employer for a reasonable time after receiving the "green card" to avoid any potential future findings of fraud or misrepresentation. A reasonable time is a fact-specific matter, but many attorneys recommend a minimum of six months and preferably a year or longer. Therefore, it is best to make it clear exactly which employment offer formed the basis of the I-485 approval. In some cases, the BCIS may approve the I-485 either before receiving the information on the change in employers or before their mailroom processes that information. It is best to notify them upon switching employers so that the BCIS records will reflect their having received the appropriate documentation when the person files for citizenship.

Failure to notify the BCIS of a change in employer may, at the very least, cause confusion in the future if the case is ever reviewed. In other instances, it may be deemed as fraudulent not to notify the BCIS. This review could happen if the person has any inappropriate immigration or criminal involvement. For law-abiding individuals, the case will be reviewed if the person seeks to naturalize to U.S. citizenship. In order to naturalize, the green card must be obtained in a legitimate manner. For employment-based green cards, the length of employment with the sponsor following green card approval is important in the BCIS determination of whether the approval was properly issued. We still do not know how AC21 has modified the pre-AC21 law in this regard but it makes sense that there must be some leeway.