EB2 India and China Retrogression May Result in AC21 AOS Portability Benefits

Developments in the employment-based, second preference (EB2) category for India and China in late 2011 / early 2012 generated both excitement and disappointment for many EB2 candidates. The rapid forward movement of cutoff dates in the visa bulletin for EB2-eligible candidates from India and China allowed many either to finally file for adjustment of status (AOS), using form I-485, or obtain approval. While many such individuals are now U.S. permanent residents as a result, others who just filed their I-485s must continue to wait. For them, the following may serve as a reminder that such delays can provide an opportunity to make appropriate employment changes, if needed or desired, to enjoy certain benefits under the AOS portability provisions.

Recent EB2 India and China Retrogression Trends

As regular readers of MurthyDotCom and the MurthyBulletin are aware, the EB2 cutoff date for India and China retrogressed after many months of significant advancement. This retrogression is reflected in the May 2012 U.S. Department of State (DOS) Visa Bulletin. However, it was effective internally by the end of March 2012. Usage of immigrant visa numbers exceeded projections, rendering visa numbers unavailable in EB2 for individuals born in India and China. This update was announced on MurthyDotCom April 6, 2012, in EB2 Visa Numbers Depleted for India and China, which includes more information on this matter.

Potential for Taking Advantage of AC21 Portability Benefits

As a result, adjustment-of-status (I-485) applications filed under the April 2012 Visa Bulletin, as well as many such cases filed in early 2012 and late 2011, will remain pending at least until the end of fiscal year 2012 (FY12). As a reminder, FY12 ends September 30, 2012. An additional allotment of immigrant visa numbers will become available on October 1, 2012, the first day of FY13.

Benefits of AC21 AOS Portability Provisions

While the recent EB2 events are not as dramatic as the summer fiasco of 2007, they have created a smaller version of that event. [More on the fiasco of 2007 can be found by searching that phrase on MurthyDotCom.] For the time being, there are EB2 I-485 cases pending with the USCIS for which there are no visa numbers available. Thus, just like in 2007, there will be a new group of I-485 applicants over the next few months who will be eligible to utilize the AOS portability provisions under the law referred to as the American Competitiveness in the 21st Century Act (AC21).

I-485/AOS Must be Pending a Minimum of 180 Days

As explained in many of our articles available on MurthyDotCom, AC21 portability allows for I-485/AOS approval to permanent residence based upon a job other than the position set forth in the underlying labor certification. Eligibility for this option arises once the I-485 has been filed and pending with the U.S. Citizenship and Immigration Services for at least 180 days. Given the waiting time for visa numbers until at least October 2012, therefore, AC21 could become a viable option for many of those who filed their I-485 cases during the past few months.

Changes in Job or Position are Within AC21 Portability Benefits

While AC21 is often thought of in the context of a change in employers, it can also be used to take a new job and/or position with the green card-sponsoring employer. These provisions in some situations may be used to accept promotions or other transfers with the same employer. It is only necessary for the timing of the case to meet the AC21 AOS portability requirements and for the new job to be within the “same or similar” job classification as the position set forth in the PERM labor certification.

Briefer Opportunity for AC21 AOS Benefits

Unlike the many years of waiting time and AC21 eligibility experienced by summer 2007 filers, the window of opportunity to benefit under AC21 many only be a few months for recent EB2 I-485 applicants.

Murthy Law Firm Can Help

Those I-485 applicants who may want or need to use the AC21 portability provisions can obtain guidance and representation through the Murthy Law Firm. Our legal team has extensive experience with AC21 green card portability issues. For over a decade, since AC21 was passed into law, we have successfully assisted many clients navigating its AOS portability options.

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