All about AC21

[skpanda]

Folks,

There are many people who may not have clear picture on AC21. I did not find a dedicated thread for AC21 related questions hence this thread.

Here people can share their knowledge on AC21 process or ask questions regarding the same.

I found below sites that has good details on AC21.

http://ac21portability.com/
http://us-non-immigrants.blogspot.com/2011/05/ac21-portability-faqs-and-sample.html/

In addition they have a very nice detailed flow chart of AC21 scenarios.

http://ac21portability.com/scenarios.pdf

Check this out!!

Thanks to ac21portability.com!!

NOTE: The external websites in this post do not belong to me. I do not maintain those websites. I discovered them during my research on this topic. If you find any mistakes or incorrect information in the external websites, please let me know so that I can update this thread clarifying the same.

[qesehmk]

I went to the site and found at least one error in AC21 flow diagram. It says under some circumstances you can start your own business .... well in US anybody can start a business and anybody can buy a home!!! You can be on B1 B2 H1 H2 H4 or you can be outside of US .... as far as I know. You can still do either.





Folks,

There are many people who may not have clear picture on AC21. I did not find a dedicated thread for AC21 related questions hence this thread.

Here people can share their knowledge on AC21 process or ask questions regarding the same.

I found a site that has good details on AC21.

http://ac21portability.com/

In addition they have a very nice detailed flow chart of AC21 scenarios.

http://ac21portability.com/scenarios.pdf

Check this out!!

Thanks to ac21portability.com!!
http://ac21portability.com/scenarios.pdf

[skpanda]

Q,

I understand your genuine concerns regarding advertising. However, I wanted to clarify that I have nothing to do with those websites. My only intention was to create a thread where people can put down their knowledge/questions on AC21 instead of flooding our most popular EB2 predictions thread. The purpose of putting down external websites was so that I need not re-invent the wheel by putting down basics of AC21 and get 'newbies' started on AC21 instead of asking questions such as 'can somebody explain how AC21 works'.

I intend to update the header as and when I have some time and put down my own inputs and a logical flow of AC21. For example I added an additional site a little while ago (it does not have any advertisements). When I have time, I will research about AC21. It may so happen that after sometime, we may not even need those external web links or they would just be for reference.

I appreciate you for taking the initiative to start this great forum which gave a good oppurtunity to many people to share their knowledge with people like me. I just want to continue the same and try to share the knowledge that I have/may acquire in my journey towards GC.

Thanks!


Skpanda, I will NOT delete this thread or post .... but this almost amounts to advertisement. Just take care that your posts are genuinely useful to people.

I went to the site and found at least one error in AC21 flow diagram. It says under some circumstances you can start your own business .... well in US anybody can start a business and anybody can buy a home!!! You can be on B1 B2 H1 H2 H4 or you can be outside of US .... as far as I know. You can still do either.

[qesehmk]

Skpanda,

Truly apppreciate the way you took my post. Really healthy mindset. I applaud your initiative. Really appreciate it. Please forgive me for any unintentional hurt/insult. All the best.. I do think this is a VERY important topic.


Q,

I understand your genuine concerns regarding advertising. However, I wanted to clarify that I have nothing to do with those websites. My only intention was to create a thread where people can put down their knowledge/questions on AC21 instead of flooding our most popular EB2 predictions thread. The purpose of putting down external websites was so that I need not re-invent the wheel by putting down basics of AC21 and get 'newbies' started on AC21 instead of asking questions such as 'can somebody explain how AC21 works'.

I intend to update the header as and when I have some time and put down my own inputs and a logical flow of AC21. For example I added an additional site a little while ago (it does not have any advertisements). When I have time, I will research about AC21. It may so happen that after sometime, we may not even need those external web links or they would just be for reference.

I appreciate you for taking the initiative to start this great forum which gave a good oppurtunity to many people to share their knowledge with people like me. I just want to continue the same and try to share the knowledge that I have/may acquire in my journey towards GC.

Thanks!

[victorian]

Hi Guys -

Thanks for starting this thread and the site in general. Lots of useful analysis here.

I have a question about AC-21. I recently switched jobs after being with the GC filing employer for > 4 years. EB2, I-140 approved. I-485 pending > 180 days (PD - March 2007).

In the original PERM petition, the Education + Experience requirement was Masters + 1 year experience (which is what I had), but with the caveat that there is no other application Education + Experience combination.

While filing my H-1B with the new company, the company advertised the job requirements as Bachelors + >5 years experience (which I now have). The lawyer is in the process of filing the AC-21 notice and says that these requirements are functionally equivalent.

My question to the commentariat is that - are you aware of any stipulation which might cause an issue in my case for portability? The job description is approximately the same as my old one.

Thanks in advance for your time.

[qesehmk]

Victorian, I am not a lawyer so don't take my advice to bank.

As long as the job duties and job code is similar pay is similar you should be fine. You are past labor stage already.

Besides H1 and GC are two different things and case adjudicator has no way to look at your H1 labor unless your lawyer points it out.


Hi Guys -

Thanks for starting this thread and the site in general. Lots of useful analysis here.

I have a question about AC-21. I recently switched jobs after being with the GC filing employer for > 4 years. EB2, I-140 approved. I-485 pending > 180 days (PD - March 2007).

In the original PERM petition, the Education + Experience requirement was Masters + 1 year experience (which is what I had), but with the caveat that there is no other application Education + Experience combination.

While filing my H-1B with the new company, the company advertised the job requirements as Bachelors + >5 years experience (which I now have). The lawyer is in the process of filing the AC-21 notice and says that these requirements are functionally equivalent.

My question to the commentariat is that - are you aware of any stipulation which might cause an issue in my case for portability? The job description is approximately the same as my old one.

Thanks in advance for your time.

[victorian]

Victorian, I am not a lawyer so don't take my advice to bank.

As long as the job duties and job code is similar pay is similar you should be fine. You are past labor stage already.

Besides H1 and GC are two different things and case adjudicator has no way to look at your H1 labor unless your lawyer points it out.

Thanks for the quick reply, Q.

The only reason that I am concerned is that the labor was classifed as EB-2 based on the Masters degree and the new job does not stipulate a Masters degree. Being this close, I don't want to take any chances and be prepared for any eventuality.

I am pretty confident that my previous employer will not revoke my I-140 because (1) He is too stingy :P (2) we left on good terms.
So, in the scenario that my AC-21 petition gets denied for some reason, I can still go back to my old employer, correct?

Again, appreciate your help.

[qesehmk]

No worries. Educational qualification is only one aspect. But its the job code job family and income that matter much more IMHO.

On the day the adjudication happens, you need to have that same or similar job or job offer with current or previous or ANY other employer. Hope this helps.


Thanks for the quick reply, Q.

The only reason that I am concerned is that the labor was classifed as EB-2 based on the Masters degree and the new job does not stipulate a Masters degree. Being this close, I don't want to take any chances and be prepared for any eventuality.

I am pretty confident that my previous employer will not revoke my I-140 because (1) He is too stingy :P (2) we left on good terms.
So, in the scenario that my AC-21 petition gets denied for some reason, I can still go back to my old employer, correct?

Again, appreciate your help.

[victorian]

No worries. Educational qualification is only one aspect. But its the job code job family and income that matter much more IMHO.

On the day the adjudication happens, you need to have that same or similar job or job offer with current or previous or ANY other employer. Hope this helps.

Thanks, I posed this question to a lawyer at Lawbench and he does not seem to think it is an issue since the education requirements are similar. He agrees with your premise that job duties and pay are more important. Hope this helps someone in a similar situation.

[pch053]

Here is the acknowledgement letter I received from USCIS a while back. Again, there is no guarantee that one would receive something similar and it should have no effect on one's pending I485 application. I just typed in USCIS response below as someone asked for the information.

===============USCIS Letter========================

This acknowledges your correspondence received in this office on XXX.

The G28 you submitted was properly completed to attain representation of the referenced petition/application. Our systems have been updated to reflect this transaction. Your correspondence regarding AC 21 employment portability has been connected to the file. Thank you for notifying USCIS of the changes.

[ram_40001]

Anyone know how Ac-21 works if you receive your GC less than 180 days after filing your I-485? Can you change jobs freely within your field, or do you have to wat till the end of the 180 days?

[veni001]

Anyone know how Ac-21 works if you receive your GC less than 180 days after filing your I-485? Can you change jobs freely within your field, or do you have to wat till the end of the 180 days?

ram_40001,
Once you receive your GC, you are free to change the jobs. Not to worry about AC21.

[gkjppp]

gkjppp,

What i mean to say was the bulletin that will be published in the month (or after) DOS see the increased demand for the VISA numbers.

Considering the 3-4 month processing time we are seeing now, best case scenario will be April or worst case June.

got it Thanks Veni.

[Kanmani]

Anyone know how Ac-21 works if you receive your GC less than 180 days after filing your I-485? Can you change jobs freely within your field, or do you have to wat till the end of the 180 days?
Ram , the AC21 is applicable only to I-485 pending for more than 180 days. After applying AC21 your sponsoring employer has no right to revoke your GC.

ram_40001,
Once you receive your GC, you are free to change the jobs. Not to worry about AC21.

Veni
I consulted an attorney (murthy firm) according to him , unless there is an AC21 invoked, upon receiving GC, the employee must work in the job position described in the perm for 180 days .

[qesehmk]

Kanmani,

I would've sided with Veni on this one. But since you talked to a lawyer I am very curious if this indeed is true for everybody or only for those who received a GC within 180 days from filing 485?


Ram , the AC21 is applicable only to I-485 pending for more than 180 days. After applying AC21 your sponsoring employer has no right to revoke your GC.


Veni
I consulted an attorney (murthy firm) according to him , unless there is an AC21 invoked, upon receiving GC, the employee must work in the job position described in the perm for 180 days .

[Spectator]

Ram , the AC21 is applicable only to I-485 pending for more than 180 days. After applying AC21 your sponsoring employer has no right to revoke your GC.


Veni
I consulted an attorney (murthy firm) according to him , unless there is an AC21 invoked, upon receiving GC, the employee must work in the job position described in the perm for 180 days .


Kanmani,

I would've sided with Veni on this one. But since you talked to a lawyer I am very curious if this indeed is true for everybody or only for those who received a GC within 180 days from filing 485?I guess it is going to depend whether the person was working for the sponsoring employer, in the position described in the petition, at the time they received GC approval.

If they were, then it is just a judgement call about whether to work 6 months for the employer or not.

If the GC was for a future position with another Employer and the I-485 had not been pending 180 days when approved, then no AC21 I-140 portability exists.

The new GC holder should take up employment with the sponsoring employer. That is the basis of the approval.

If they don't, it opens up a whole can of worms for GC revocation / Citizenship problems in the future.

To have received a GC on the basis of a job offer that was never taken up could be construed as fraud and brings into question whether there was ever any intent to do so.

[Kanmani]

Q

Yes indeed to the contrary of our belief.

AC21 protects the employee from everything else . With AC21 in the picture, employer has no right to revoke I-140 or GC ( yes GC could be revoked).

As I said above, if there is no AC21 , the 180 days clock starts right away after receiving your GC. After 180 days of employment, you are free to move to any job in any field whatsoever.

[qesehmk]

Kanmani

This is a great post. It's a pity that over time such great posts get buried in the thread!

I think everybody should pay heed to this post.

Spec - Thanks to you too. Great point regarding the intent.

Q

Yes indeed to the contrary of our beliefs.

AC21 protects the employee from everything. With AC21 in the picture employer has no right to revoke I-140 or GC ( yes GC could be revoked).

As I said above, if there is no AC21 , the 180 days clock starts right away after receiving your GC. After 180 days of employment, you are free to move to any job in any field whatsoever.

[gchopeful123]

Ron Gotcher has a different opinion about this and I kind off agree with what he says. There is no specific restriction on staying with current employer after getting GC. The general recommendation I have read on various forums is 3 months. If it's a future employment GC, then yes i would agree that the employee shd stay atleast 6 months, but if someone has been already working with the company for 2 years or more, then it is shd be feasible for the employee to leave after getting GC.

http://imminfo.com/News/Newsletter/2010-8-15/case-study-changing-employers.html

http://www.immigration-information.com/forums/showthread.php?t=5582


Q

Yes indeed to the contrary of our beliefs.

AC21 protects the employee from everything. With AC21 in the picture employer has no right to revoke I-140 or GC ( yes GC could be revoked).

As I said above, if there is no AC21 , the 180 days clock starts right away after receiving your GC. After 180 days of employment, you are free to move to any job in any field whatsoever.

[veni001]

Ram , the AC21 is applicable only to I-485 pending for more than 180 days. After applying AC21 your sponsoring employer has no right to revoke your GC.


Veni
I consulted an attorney (murthy firm) according to him , unless there is an AC21 invoked, upon receiving GC, the employee must work in the job position described in the perm for 180 days .

Kanmani,

Just like other i have mixed feelings on 180 days rule. In addition applicability between AOS and CP cases is different.

Below article is from Ron Gouthcher's Law Firm, may provide some clarity on this.

Changing Jobs Before and after Green Card Approval (http://imminfo.com/News/Newsletter/2010-9-15/Changing-jobs-before-and-after-green-card-approval.html) - ImmInfo.com

[Kanmani]

Veni
Thanks for the article. It looks like even attorneys have mixed opinion. This debate won't come to an end unless we come across a real case scenario.

I would like to go by what is advised to us.

[Pdmar08]

All the AC21 discussion is good info and should not be lost.
Is there a thread specific to AC21 where we can move thisfor archival?

Ideally discussions should be categoriezed as,
1. Calculations and Prediction (this thread)
2. Preparation for filing(Medicals, Docs, affidavits etc.)
3. Post 485(once already exisits)
4. AC21 and beyond.

Just my thoughts.

[qesehmk]

I guess all of us seem to agree that its a grey area and USCIS may have a lot of discretion. Thanks for a good discussion.

I think we did have a thread for AC21. If not I will create one and move this stuff there.

[gchopeful123]

Agreed. The problem is that USCIS has never bothered to clearly explain it's position on this topic. It boils down to lawyers making their own interpretation of the law and us mortals taking decisions based on our discretion/necessity. Personally I think waiting 6 months (after applying 485) or waiting 3 months after getting GC wud be a sensible thing to do (whichever scenario applies first). There is no precedent to this, and therefore if USCIS tries to cause a problem they will be essentially liable for legal action/dialog since it more or less wud contradict the provisions under AC21 i.e one is free to switch jobs 6 months after applying for 485.



I guess all of us seem to agree that its a grey area and USCIS may have a lot of discretion. Thanks for a good discussion.

I think we did have a thread for AC21. If not I will create one and move this stuff there.

[qesehmk]

totally agree. esp one in blue below. so true.


Agreed. The problem is that USCIS has never bothered to clearly explain it's position on this topic. It boils down to lawyers making their own interpretation of the law and us mortals taking decisions based on our discretion/necessity. Personally I think waiting 6 months (after applying 485) or waiting 3 months after getting GC wud be a sensible thing to do (whichever scenario applies first). There is no precedent to this, and therefore if USCIS tries to cause a problem they will be essentially liable for legal action/dialog since it more or less wud contradict the provisions under AC21 i.e one is free to switch jobs 6 months after applying for 485.

[harapatta]

Team...need your help to make some decisions...i been offered a quality mangers job in same organization but in different location( SC to TX) , currently i report to quality manager. My responsibilities, role and salary will increase significantly in the same field. i have filed my i-485 on 03/02/2012 , is it safe to take the job after waiting for 180 days ? thanks...

[qesehmk]

I think so. AC21 applies after 180 days. All the best.


Team...need your help to make some decisions...i been offered a quality mangers job in same organization but in different location( SC to TX) , currently i report to quality manager. My responsibilities, role and salary will increase significantly in the same field. i have filed my i-485 on 03/02/2012 , is it safe to take the job after waiting for 180 days ? thanks...

[harapatta2012]

I applied for I485 in Jan 2012 and ist already 180 + days. I ahve EDA/AP. I did recieve RFE on I485 which was replied 40 days ago. I havent heard anything since and online status shows 'RFE review'. I was told that there is no way to find whats going on with RFE, if worked on or already case is pre-adjudicated. Only if there is issue they might say something.
Question:
-Is the option on not working (not employed, layoff) when I have RFE a possibility? Or does it require a person to have pre-adjuicated to be able to stay in this country unemployed?

[harapatta2012]

Anybody? Will Appreciate the reply.

[indiani]

AC21 question:

My 485 filed in april 2012 under EB2I with nov 2007 PD and I am with same sponsoring employer A, if I leave my job now and send AC21 letter with future job offer from company B with intent of joining future job only after getting GC as the GC is for future job after approval, will there be any problem

so is it ok not to work for the company B right now from whom I plan to get a letter for AC21 and start working after GC

[isantem]

AC21 question:

My 485 filed in april 2012 under EB2I with nov 2007 PD and I am with same sponsoring employer A, if I leave my job now and send AC21 letter with future job offer from company B with intent of joining future job only after getting GC as the GC is for future job after approval, will there be any problem

so is it ok not to work for the company B right now from whom I plan to get a letter for AC21 and start working after GC

Why would you invoke AC21 if you will not work at the new company until you get your GC?

[indiani]

Lets say the current employer sends request for withdrawl of h-1 or 140 or both.
In that case if they don't have any other information about future employer on file they might just deny. or send NOID ,

on the other hand if my PD becomes current in august/sept and somehow they do not get any withdrawl request by then from my employer then I think I may be better off just sending any AC21 letter and wait for GC then start new employment (in that case self employment) ., not sure whether legally it will safe

[Kanmani]

Lets say the current employer sends request for withdrawl of h-1 or 140 or both.
In that case if they don't have any other information about future employer on file they might just deny. or send NOID ,

on the other hand if my PD becomes current in august/sept and somehow they do not get any withdrawl request by then from my employer then I think I may be better off just sending any AC21 letter and wait for GC then start new employment (in that case self employment) ., not sure whether legally it will safe

indiani, the following USCIS memo was an interim memo, I haven't verified if it was added to the Adjudicator's Field Manual or not.

"Question 8. Can an alien port to self-employment under INA §204(j)?

Answer: Yes, as long as the requirements are met. First, the key is whether the employment is in a "same or similar" occupational classification as the job for which the original I-140 petition was filed. Second, it may be appropriate to confirm that the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues. Third, as with any portability case, USCIS will focus on whether the I-140 petition represented the truly
intended employment at the time of the filing of both the I-140 and the I-485. This means that, as of the time of the filing of the I-140 and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate."

http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm122705.pdf

[indiani]

indiani, the following USCIS memo was an interim memo, I haven't verified if it was added to the Adjudicator's Field Manual or not.

"Question 8. Can an alien port to self-employment under INA §204(j)?

Answer: Yes, as long as the requirements are met. First, the key is whether the employment is in a "same or similar" occupational classification as the job for which the original I-140 petition was filed. Second, it may be appropriate to confirm that the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues. Third, as with any portability case, USCIS will focus on whether the I-140 petition represented the truly
intended employment at the time of the filing of both the I-140 and the I-485. This means that, as of the time of the filing of the I-140 and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate."

http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm122705.pdf

Thanks, i saw this memo before. I have no immediate plans of porting at this time but want to get ready for august bulletin when it almost certainly be known whether i would get GC this fiscal year.
If answer is NO, I want to get prepared for the back up plan as the current job is just too difficult to continue in the long run and also I am not tied to anything in the place I am living in

[indiani]

AC21: key points I heard from my attorney,

1. Self-employment is just as good .
2. No need for AC21 documents to be sent if staying in the same area.(even tough i plan to send if I make a move as its safer based on experience of previous applicants who received denials/NOIDs)
3. Its better to move now to new job (self) or other employer rather moving immediately (2-3 months) after GC.

I perhaps disagreed with the last point with attorney as with Nov 2007 EB2I, i think it might be less risky
to change job 3 months after GC rather than sending AC21 and risking delay in my case approval as most experts believe that I will be current this fiscal year.

Moreover after AILA meeting, my attorney will contact me immediately regarding whatever info they get from CO about PD movements

[harpreetbhatti]

Hello Experts, I am switching job and will be joing new employers on EAD, my H1-B with current employer is valid through mid, 2021. My I-485 is pending since April, 2012 with EB2-I priotiy date of Jul 28th, 2009. My question is do I need to do anything else other than using my EAD to fill in new I-9?

Thanks!

[imdeng]

When I was in your situation, I did not do anything - just joined using EAD to file I-9. Only other thing you can do is file a I-485-Supp-J, although the consensus seems to be to do that when you get an RFE for that. That is what I did.


Hello Experts, I am switching job and will be joing new employers on EAD, my H1-B with current employer is valid through mid, 2021. My I-485 is pending since April, 2012 with EB2-I priotiy date of Jul 28th, 2009. My question is do I need to do anything else other than using my EAD to fill in new I-9?

Thanks!

[suninphx]

When I was in your situation, I did not do anything - just joined using EAD to file I-9. Only other thing you can do is file a I-485-Supp-J, although the consensus seems to be to do that when you get an RFE for that. That is what I did.

As USCIS has formalized process with a specific form now, it would be prudent to file 485J when you change the jobs , IMO.

That might save you time down the line when dates are current.