Murthy Takes Action: Input on AC21 Regulations

The American Competitiveness in the Twenty-First Century Act, known as AC21, became law more than a decade ago. As of this writing, the USCIS has issued neither proposed nor final regulations interpreting the provisions of AC21. Rather, the U.S. Citizenship and Immigration Services (USCIS) has posted various guidance memoranda on AC21 over the years, which have been reported to MurthyDotCom and MurthyBulletin readers on a regular basis. With this history, it is a bit remarkable that the USCIS held a national stakeholder meeting on July 13, 2011 to gather input on potential content for a Notice of Proposed Rulemaking (NPRM), as they plan to begin the process of issuing AC21 regulations. The Murthy Law Firm submitted suggestions to the USCIS for the proposed AC21 regulations on matters of interest and concern to our clients and the rest of the immigrant community.

Background: USCIS Seeks Comments

The NPRM is the first step the USCIS generally would follow to reach the ultimate goal of finalizing regulations implementing AC21. While the NPRM itself should give people a chance to make comments that impact the final regulation, the USCIS used the stakeholder meeting to get the public’s views prior to issuance of the NPRM. The USCIS has increased its efforts to obtain such input prior to making proposals and changes to regulations and procedures. Readers who are not familiar with the basic provisions of AC21 may review articles on the topic, available on MurthyDotCom, which have been written over the years.

USCIS Suggestion to Submit Forms / Filing Fees to Determine “Same or Similar” Job

One of the USCIS suggestions for notification of a job change, under the AC21 adjustment-of-status (AOS) portability provisions, is to create a system for AOS applicants to file their applications with the USCIS asserting AC21 eligibility. The proposal suggests a required filing, with a fee, requesting USCIS adjudication of the key issue of whether the new employment meets with AC21 requirement of a “same or similar” occupational classification, when compared to the position described in the PERM labor certification and/or I-140 employer petition.

At the time of this writing, AC21 does not have a mandatory filing. Those who follow the general guidance we offer at the Murthy Law Firm, notifying the USCIS of the use of AC21, do not receive any acknowledgement of acceptance or agreement from the USCIS prior to the final case decision. The USCIS states that the filing procedure would benefit those with retrogressed cases. More clarity would be helpful and, for some, quite reassuring. For those with pending I-485 cases, however, who are facing years of retrogression, it would also open the door to potentially needing filings due to multiple job changes over the course of many years.

Murthy Law Firm Suggestions Submitted to USCIS

Several Murthy Law Firm attorneys participated in this meeting, as we regularly utilize the AC21 provisions in our cases. They have worked with AC21 matters in a breadth of nuances on behalf of our clients over nearly eleven years of such filings. The Murthy Law Firm presented two proposals. Both pertaining to AC21 “green card” provisions, and specifically to I-140 employer-petition matters, as they impact the ability of individuals to obtain permanent residence under the AC21 portability provisions.

Murthy Proposal for Business Closures, I-485 Remaining Eligible for Approval

Individuals in our first proposal, at some point, have met the basic AC21 provisions. That is, the foreign national has an I-140 employer petition approval and an I-485 adjustment-of-status application pending for 180 days or longer. The issue is how the case is treated if, once these requirements are met, the company that filed the I-140 petition goes out of business. Existing regulations state that an I-140 approval is revoked automatically if the petitioner, or employer, closes the business. We recommended that the USCIS treat such cases the same as when an I-140 approval is revoked by a petitioning employer’s withdrawal. That is, that closure of the business should not impact the case in a negative manner, so that the I-485 remains eligible for approval under provisions of AC21.

Murthy Proposal for Individual Input on Potential I-140 Denials, NOIDs, NOIRs

Our second proposal for the AC21 provisions is that the USCIS change the regulation to allow I-485 applicants who ported under AC21 to have input into I-140 matters arising after they “port” the I-485 to a new employer. Specifically, we suggest that such an individual be allowed to respond to any Notice of Intent to Revoke (NOIR) or Notice of Intent to Deny (NOID) issued regarding the employer’s previously-approved I-140 petition.

At the Murthy Law Firm, we have seen cases in which the USCIS issues a NOIR only to the original I-140 petitioning company. The petitioning company often does not respond, as it no longer has an interest in sponsoring the particular individual who has left their employment. In such cases, the USCIS denies the I-485 application because the law regards the I-140 petition as the employer’s petition only, even after the case is eligible to enjoy AC21 AOS portability. There are times when the issues raised in the I-140 NOIRs potentially could be addressed using information and documents that are in the individual’s possession. Limiting this person’s access and options in these situations undercuts the purpose of the AC21 provisions that provide freedom of movement under the law for individuals.

Consult an Attorney if Likely I-140 Response is Denial, NOIR, NOID

For those facing the situation addressed in our second proposal, above, it should be noted that, while the law technically does not allow an I-485 applicant to respond to an I-140 NOIR, it generally is still a good course to consult with an attorney on the issues raised. Someone knowledgeable about AC21 may be able to identify a course of action based on issues raised in the I-140 NOIR that might help resolve such a case in the I-485 applicant’s interest. We at the Murthy Law Firm stand ready to offer guidance or representation in such situations.

Conclusion

An ironic aspect of the apparent progress toward issuance of AC21 regulations, is that the use of AC21 in the green card context is somewhat reduced at this point in time. While still an important provision for many who filed I-485s in the summer of 2007, the eligible group is declining. The USCIS has improved its I-485 processing times so that cases with current priority dates may be adjudicated before waiting 180 days. The U.S. Department of State Visa Bulletin cutoff dates have less fluctuation, due in large part to better transparency in the data regarding demand for visa numbers. It is less likely, therefore, that there will be additional individuals who must cope with retrogression after filing their I-485s. Nonetheless, AC21 remains a key part of employment-based immigration. We at the Murthy Law Firm will continue to follow this matter and provide input based on our years of experience to the appropriate government agencies for the benefit of our clients and our readers.

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