AC21 Frequently Asked Questions (Part 1 of 2) : January 2008 Update
Posted Jan 18, 2008
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[The second half of these questions and answers are available on MurthyDotCom. ]
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As regular MurthyDotCom and MurthyBulletin readers know, many individuals were able to file the I-485, Application for Adjustment of Status, during the summer of 2007. As a result, the Murthy Law Firm is receiving a great many questions pertaining to use of the portability provisions of The American Competitiveness in the Twenty-First Century Act (AC21). Of course, it is always safest to consult with a knowledgeable, experienced immigration attorney, who will go over the specifics of one's case. The detailed FAQs here and those to follow in next week's MurthyBulletin, however, focus on several of the more commonly asked legal questions and possible solutions that may apply. An earlier set of FAQs on AC21 was published May 14, 2002 on MurthyDotCom. While much of that information remains accurate, the time is ripe for an update, with so many recently having filed their cases. The information contained in this two-part article is based on subsequently issued USCIS guidance memos, as well as almost six years of additional experience working on a variety of complex and varied AC21 cases. All articles referenced are available on MurthyDotCom.
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Background on AC21 at MurthyDotCom
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Readers previously have been provided with many articles from the Murthy Law Firm regarding matters related to AC21, including explanations of the guidance and various memos that have been issued since AC21 became law in October 2000. The initial guidance was issued in June 2001 and was covered in our June 25, 2001 article, INS Finally Issues its Initial Guidance on AC21 in June 2001. A quick search of MurthyDotCom, using the keyword "AC21," pulls up articles covering developments and issues pertaining to AC21. In light of retrogression, readers may want to review our November 4, 2005 article, AC21 Portability and Retrogression. Those who have received promotions or transfers with their employers / sponsors may wish to read Job Changes with Same Employer and AC21 Portability, from January 31, 2003.
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I-485 Receipt Date Governs
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Question 1. Is it the receipt date or the notice date that governs the counting of the 180-day period under AC21?
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It is the receipt date that governs. AC21 speaks in terms of the I-485 pending for 180-days or more. Applications are pending from the time they are filed with the USCIS. It is therefore the day that the case actually was received by the USCIS that governs; not the date that the USCIS generated the receipt notice. This makes a significant difference; particularly for many of the summer 2007 filers, since there were substantial delays in issuance of receipt notices.
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Loss of Employment after Filing I-485, before I-140 Approval Risky
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Question 2. I lost my job before the I-485 had been pending 180 days. Can I still use portability?
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It can be attempted, and we have done so successfully in many cases. This is important for some summer 2007 filers, as some employers tend to conduct layoffs at the end of the year. For some, the layoffs came as they were approaching, but had not yet reached, the 180-day point.
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One of the major concerns in a layoff situation is the I-140. If the I-140 has been approved, then the concern is whether the employer will withdraw it before the 180-day point. The I-140 must remain intact until the I-485 reaches the 180-day point. See, our August 12, 2003 article, BCIS Memo on I-485 Portability after I-140 Revocation. Alternatively, if the I-140 has not been approved, there is still the possibility of using AC21, but it is much riskier. This issue is addressed in a USCIS memo discussed in our May 27, 2005 article, Yates May 2005 Memo on AC21 and I-140s, as well as our October 6, 2006 article, USCIS reissues AC21 Memo with Clarification. The risks are explained in more detail in the October 6, 2006 memo.
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There are some key concerns in this situation. If one is laid off, it is best to get input from an experienced immigration attorney to address status maintenance and the preservation of any possible benefits from the prior green card filing. Often, it is best to file a new green card case as a backup, even if it is potentially possible to pursue a pending green card case.
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Never Worked for GC-Sponsoring Employer - Potential Fraud
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Question 3. I never worked for my "green card" sponsoring employer. It was a future job offer. Can I use AC21 portability?
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Yes, one potentially could do this, but it could raise questions of whether the initial job offer from the labor certification-sponsoring employer was valid or bona fide. Employment-based green card applications are all based on the concept of a future job offer. Therefore, there is no legal requirement to work for the sponsor at the time of filing the labor certification (LC), or even while the I-140 or I-485 is pending. The best proof that a job offer is valid, however, is working for the sponsor. Thus, filing a case as a future job offer, without working for the sponsor, then using AC21 to move to an alternative position, can raise questions of intent and potential fraud or misrepresentation. The safe approach is to avoid this scenario by working for the sponsoring employer.
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New Job Can be "Similar" but Differ in Some Respects
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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?
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In our experience, yes. The AC21 determination is governed by duties of the job rather than the job title, as job titles often differ between companies, even for very similar positions. The AC21 law uses the terminology "same or similar job classification." The June 2001 guidance refers us to the DOL system of occupational classification as a guideline. The later May 2005 Yates Memo makes the same references. The duties listed for the original job offer should be compared with the job duties of the new position to determine within which category they fall. The DOL categories are generally fairly broad. In many situations, therefore, this does not present a significant problem. It is important to note that the duties generally govern, and not specific technologies, in most cases; though this could be different in a given situation.
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Risk if Employer Revokes I-140 Petition before I-485 Pending 180 Days
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Question 5. I am afraid that, if I change my job, my employer will try to harm my green card case. What are the risks?
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This is, in part, addressed in Question 2. The employer does not control the I-485 application, since this is filed directly by the foreign national. The I-485 is based on the I-140, however, which is the employer's filing. The employer can always withdraw or revoke the I-140 petition. If the I-140 petition has been approved, and the I-485 has been pending for 180 days, the employer can still revoke the I-140 petition approval. This does not prevent the case from being approved, however. Under the August 4, 2003 Yates memo, an approved I-140 petition remains valid, once the I-485 application has been pending for 180 days, even if the employer requests the revocation of the I-140 petition. In that situation, if the foreign national has not provided information about the new job, then the USCIS will issue a Notice of Intent to Deny (NOID). If a NOID is issued, a response must be filed demonstrating eligibility under AC21. If the file contains documentation about the new job, the case should just continue being processed.
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Even if the I-485 has been pending 180 days, it is quite risky if the I-140 has not been approved. Under the 2005 Yates memo, there are still possibilities for approval, but many pitfalls remain. One of the primary potential problems arises if an RFE is issued. At that point, many employers either will not respond or will withdraw the I-140 petition, risking the entire case.
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Sponsoring Employer Has No Obligation to Revoke I-140 after Employee Leaves
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Question 6. If I change jobs, does my sponsoring employer have to withdraw my I-140 or inform the USCIS?
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No. Unlike the H1B, there is no requirement for the employer to notify the USCIS of termination of the employment or withdraw the I-140 petition. Many employers do not withdraw I-140s upon employment termination. This is particularly true after July 16, 2007, since it is no longer possible to file labor certification substitution cases. In labor certification substitution cases, the employer was required to revoke the previously approved I-140 for the original beneficiary in order to substitute a new beneficiary. Thus, employers had a valid reason for revocation in some instances. Now, there is often no reason or need to revoke an I-140.
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Conclusion
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We are happy to provide MurthyDotCom and MurthyBulletin readers with these answers to some of their most pressing questions on AC21. Next week's bulletin will address more on this topic that impacts many in the immigrant community.
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[The second half of these questions and answers are available on MurthyDotCom. ]
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