Murthy Makes Successful AC21 Portability Argument at U.S. Consulate

The Murthy Law Firm is proud to report that we were able to secure employment-based immigrant visas for a family at a U.S. consulate based on the portability provisions in the American Competitiveness in the Twenty First Century Act (AC21). While moving to a new employer under AC21 is fairly routine, what made this case notable is the successful argument that portability continued to apply when the case was moved to consular processing after the initial adjustment-of-status (form I-485) application was denied.

Murthy Always Maintains Confidentiality of Cases

The Murthy Law Firm does not reveal the identity of a client or provide any details related to a case handled by our firm without first obtaining express consent from the client. The foreign national in this article came to the Murthy Law Firm for help after receiving a denial of his adjustment-of-status application (I-485). We appreciate his generosity in allowing us to use this case example to explain how AC21 portability sometimes can still be used to protect an applicant who is applying to become a lawful permanent resident (“green card” holder) via consular processing, following the denial of an I-485 application.

Background: AC21 Employment Portability

The AC21 portability provisions allow job flexibility for delayed I-485 cases. Specifically, an applicant can seek approval based upon a change in job offer once the I-485 has been pending for at least 180 days. The new job offer must be in a position that is in the same or similar job classification as the sponsored position that is detailed in the underlying I-140 immigrant petition.

AC21 Portability Rarely Used at U.S. Consular Posts Abroad

The AC21 provisions are used quite routinely for pending I-485 applications. The U.S. Department of State (DOS) has also indicated that a person can use the benefits under AC21 at U.S. consular posts abroad. However, this is far less common, as AC21 portability only applies in cases where the I-485 has been pending for at least 180 days. Generally speaking, for AC21 portability to be invoked at a consulate, the applicant would have had to have been in the U.S. at the time the I-485 was filed, and then changed to consular processing after 180 days or more had passed. This does occur, from time-to-time, but it is certainly not the norm.

I-485 Denied, Children Aged Out

Prior to coming to the Murthy Law Firm, our client filed his I-485 application, and then moved to a new employer after more than 180 days had passed. His application, however, was denied. To make matters worse, his children had “aged out” (i.e. They no longer qualified to receive immigration benefits as dependents of their parents upon reaching 21 years of age.) They had been protected under the Child Status Protection Age (CSPA), but the I-485 denial left them in jeopardy of missing out on this opportunity to obtain green cards through their father.

Murthy Takes Action

Faced with a denied I-485, a job change, and a family that faced the possibility of being separated, the Murthy Law Firm pursued the matter as a consular processing case. This required making arguments at various times to several different government entities: the U.S. Citizenship and Immigration Services (USCIS) first, followed by the DOS National Visa Center (NVC), and then, finally, at the U.S. consulate. Applying these AC21 portability provisions at a consular post abroad, in conjunction with the CSPA arguments, presented us with a number of procedural and substantive challenges. The attorneys on this case successfully argued the complex legal issues at each step in the process. We are thrilled for what this means to our client and his family.

Conclusion

In appropriate cases, the Murthy Law Firm can help individuals who may no longer be eligible for adjustment of status from within the United States, and instead are required to pursue permanent residence through consular processing. This option can include cases involving AC21 portability, if there was an earlier qualifying I-485 filing. We at the Murthy Law Firm are very pleased with the result in this complex case as it helped our client and his family, all of whom are now permanent residents of the United States. The Murthy Law Firm has been successfully representing clients seeking to change employment under AC21 since it became law more than a decade ago. In most cases, we are able to facilitate the AC21 transition far more routinely, and we welcome the opportunity to assist in both typical and complex matters.

The Murthy Law Firm never reveals details of any case handled by our firm, nor the identity of any client, without first obtaining his/her express consent. We appreciate the generosity of our client in allowing us to use this case as an example to our readers. Please note that all cases are different. Even with cases that appear to be similar, past success does not guarantee a favorable result.

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