What is AC21 ?
Enacted in 2000, the American Competitiveness in the 21st Century Act (AC21) provides two important provisions by allowing foreign nationals to change jobs before obtaining a green card (visa portability), and to extend their H-1B visa status beyond the 6-year statutory limit. Prior to AC 21, H-1B foreign nationals had to depart the U.S. after they had been in H status for 6 years. If they had adjustment of status application filed, they would have to keep working for the same employer for years until they obtained their greencards. With AC21, foreign nationals now have much more flexibility to change jobs or extend their H-1B status until a decision is made on their Adjustment of Status application.
What are the AC21 Portability Requirements?
Per the AC21 Portability Act, USCIS permits foreign nationals to change jobs during the pendency of I-485 , if:
- The proposed employment is in the "same or similar" occupational classification
- That I-140 has been approved, or is approvable when filed concurrently with I-485
- That Form I-485 has been pending for at least 180 days.
How does the USCIS determine the new job is in the "same or similar" occupational classification?
Although there is no clear cut answer, the USCIS may consider the following to be in the "same or similar" occupational classification:
- Job Description of the new employment will be compared with the job descriptions contained in the I-140 or labor certification
- The DOT code or SOC code assigned to the I-140 based on the labor certification will be used to determine whether the new employment is in the same or similar occupational classification
- The new salary should be similar and not be significantly different from the previous one.
Do I have to notify USCIS about the job change?
It is generally a good idea to notify USCIS of any changes that affect one's immigration benefits. To avoid problems when the USCIS adjudicates your I-485 as visas become available, one should notify the USCIS of the job change, the job description and wage level of the new job to prove it is in the same or similar "same or similar" occupational classification. The USCIS may also issue a Request for Evidence (RFE) or Notice of intent to Deny (NOID) when they adjudicate the adjustment application and has knowledge that one does not work for the employer originally listed on the Labor certification or I-140.
Is there any form one can use to notify USCIS?
There isn't. One should write a letter to the USCIS to describe the changes.
Who may request for H1B Extension using AC21?
Foreign nationals may request to extend their H1B status annually in one-year increments if their labor certification or I-140 was filed at least 365 days prior to the completion of the six-year limit.
If I-140 has already been approved but priority date is not current, they may apply for three-year extensions of H-1B status. There are no limits as to how many extensions one may request and obtain.
Can USCIS deny H-1B 6th year extension?
USCIS will approve H1B post 6th-year extension in 1-year increments unless DOL or USCIS issues a final decision to deny the labor certification application; revoke an approved labor certification; deny the pending I-140 petition; or approve or deny adjustment of status application.
Similarly, for beneficiaries with approved I-140 petitions, USCIS will approve the 3-year H1B extensions until a final decision of the I-485 is reached.
How do I request post-6th year H-1B Extensions?
The petition letter in the H-1B extension application should explain one's eligibility and proof under the AC21 provisions.