USCIS Reissues AC21 Memo with Clarification

The USCIS reissued a May 12, 2005 memo on AC21 I-485 and H1B matters. The memo bears a December 27, 2005 date. This latest memo is identical to the original, presumably only with one clarification. The earlier memo was reported to our readers when it was first issued. See our article, Yates 2005 Memo on AC21 and I-140s (27.May.2005), available on MurthyDotCom to understand the rest of the memo’s contents. With the exception of the clarification below, the information provided in our earlier article remains unchanged.

AC21 Portability Without Approved I-140

The clarification pertains to the use of AC21 portability in green card cases for which the I-140 petition has not been approved. The memo is in Q & A format, and poses the question, “How should the USCIS process unapproved I-140s where the I-485 has been pending for 180 days and the foreign national is attempting to ‘port’ to new employment under AC21?”

In this situation, the USCIS is supposed to review the I-140 to see if it is approvable or would have been approvable if it had been adjudicated within 180 days of filing. If the petition is approvable in all respects, except for a problem that arose after filing, the memo states that it should be approved. The adjustment of status case should be adjudicated based upon whether the new job fits within the AC21 “same or similar” occupational classification requirements.

Alternatively, if, after a review of the I-140, it is necessary to issue an RFE to resolve a material matter other than a post-filing problem, the USCIS can issue an RFE. When the response is received, the case is to be adjudicated as described above.

It is this last portion of the guidance that was clarified. The May 12, 2005 Memo stated that an RFE should be issued if there was a material post-filing problem. The new memo changes the wording, so as to clarify that an RFE is to be issued if there is a material problem, other than something that arose post filing. Thus, no RFE is to be issued on matters that arise after the I-140 is filed.

Advise Against Portability Without Approved I-140

While portability can be a useful strategy, even if the I-140 has not been approved, we do not advise relying upon this part of the memo. Leaving one’s job before the I-140 petition is approved, intending to continue the case under AC21, is not recommended. As can be seen from the procedure described above, an RFE is possible. If an RFE is received on an I-140 case for a former employee, a company may choose to ignore it or to withdraw the I-140 petition, since the employee is no longer in their employ. That will be the end of the case.

The provisions in the memo are helpful when there is no other choice. Examples of this might include a situation in which the company has gone out of business or a person loses his or her job before the I-140 petition is approved. In such situations, we at the Murthy Law Firm consider it prudent to try AC21 to preserve the pending green card case, but also advise starting a new PERM case as a backup plan, should the earlier case not succeed.

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