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.