AC21 Portability and Retrogression Posted Nov 04, 2005 ©MurthyDotCom Individuals who have filed the I-485, Application for Adjustment of Status, are not prevented by retrogression from using AC21 portability to change employers. As long-time readers of MurthyDotCom and MurthyBulletin know, AC21 portability arises when the I-140 is approved and the I-485 has been pending for at least 180 days. The new job under AC21 must be in the same or similar job category as the position that was described in the labor certification and/or I-140 petition. There are no geographic limitations for the new AC21 ported job. For those who had filed the I-485s before October 1, 2005, most employment-based (EB) I-485s are going to remain pending well in excess of 180 days due to retrogression. This provides the needed window of opportunity for those contemplating a change in employment. ©MurthyDotCom Nov 2005 Visa Bulletin Dates for EB Cases ©MurthyDotCom With respect to the employment-based categories, the November 2005 Visa Bulletin was identical to the October 2005 Visa Bulletin. Thus, an individual with a pending I-485 with a backlogged priority date knows that her or his cases cannot be approved in the month of November 2005. If one were to use AC21, therefore, there would be no risk of the case being approved through the original sponsor prior to the use of AC21 to "port" to a new sponsor. Of course, for those with all but the absolute oldest priority dates, this situation is likely to continue for the foreseeable future. ©MurthyDotCom AC21 Portability Available during Retrogression ©MurthyDotCom There is certainly no need or reason to change jobs simply because it is possible. We do not suggest changing employers. Those for whom a job change seems inevitable or necessary, however, could manage such a change when the numbers are not current without the risk of case approval and eventual receipt of a notice of intent to rescind the I-485 approval. ©MurthyDotCom Employers Hiring Employees with Pending I-485s ©MurthyDotCom AC21 is a simpler way for an employer to hire a foreign national whose I-485 is pending, without having to become heavily involved in immigration paperwork. We at The Law Office of Sheela Murthy recommend to our clients that they maintain their H1B statuses even after filing the I-485, although it is not legally required and many people have not done so if they hold an EAD card. The employer's role in sponsoring such individuals under AC21 is quite minimal, and generally is limited to providing verification of employment authorization. ©MurthyDotCom Conclusion ©MurthyDotCom The Law Office of Sheela Murthy, P.C. has been successfully representing foreign nationals under the provisions of AC21 since the inception of that process in October 2000. In our experience, the approval rate for qualified cases is quite high. While there is always some risk in utilizing this procedure, many people whose cases meet the standard elements have decided that, for them, the benefit of a new job is worth this risk. © 2005 The Law Office of Sheela Murthy, P.C. All Rights Reserved
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