Job Changes with Same Employer and AC21 Portability
Posted Jan 31, 2003

Longtime readers of MurthyDotCom and the MurthyBulletin will recall the American Competitiveness in the Twenty-First Century Act of October 2000 (AC21). AC21 provides that an adjustment of status applicant (adjustment applicant) who has an I-485 application pending for 180 days or longer is able to continue with the green card process even after s/he has changed employers, as long as the new job is in the same or a similar job classification.

This section of AC21 was implemented so that those applying for legal permanent resident status need not be limited to the job listed on the labor certification for the period of several years that it takes INS to process the case. As a result, many individuals now may be able to change employers once they have reached the 180-day point in the I-485 process.

Many may not realize that AC21, arguably, also appears to permit the adjustment applicant to change jobs with the same employer, as long as the new job is in the same or a similar job classification. This second use of the AC21 portability provision may be essential for some individuals who have changed jobs within their companies.

Of course, still being without INS regulations on AC21 we are in limbo on INS interpretations of the provisions of AC21. Notwithstanding this fact, we have outlined some issues one could consider. Following are examples of situations in which an adjustment applicant could argue that AC21 provisions apply, even while still working for the employer that originally sponsored the labor certification and I-140.

Change of Job Locations

An I-485 applicant's labor certification may only approve him/her to work in specified job worksites. For example, the labor certification may indicate that s/he will only work in Omaha, Nebraska. If the employer now decides to move the adjustment applicant to San Antonio, Texas, the INS would likely consider this relocation a new job even though the applicant is working for the same employer, performing the same job duties. As a result, the adjustment applicant should consider notifying the INS that s/he now intends to use AC21 to work in the new job location but perform the same or similar job duties with the original sponsoring employer. Otherwise, if INS issues a Request for Evidence (RFE) or schedules the applicant for an interview, INS may deny the adjustment application. Note that, if the labor certification indicates that the employee may be required to work at various locations / worksites, then perhaps, one need not argue a broad interpretation under AC21 portability.

Change in Salary

The economy is not a constant. We have seen in the last two years that the salaries for many high tech positions have been reduced. The dramatic changes generally have been from the time of filing the labor certification until the adjudication of the I-485 application. If the applicant is past the 180-day threshold and has been informed that the employer will not pay the salary listed on the labor certification once the green card is approved, the applicant should consider notifying INS that AC21 portability provisions apply in his/her case.

Change in Job Duties

As the employer's needs change, the duties assigned to an I-485 applicant may change. If the I-485 applicant receives a promotion in title and additional duties, the applicant may wish to notify INS that AC21 applies. However, the applicant must carefully consider the risks in accepting any new position, as the new job must still be considered the "same or similar" to the original job in order to qualify under AC21.