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 green cards. 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.
This essentially means that an applicant who has an I-485 application pending for 180 days or longer can continue with his green card application and process while changing employers. The only criterion is that the new job should be in the same or a similar job classification. The I-140 should have been approved and at least 180 days should have passed after filing the I-485 before changing employers.
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. For example, an applicant working as Computer Analyst, with SOC code 15-1211 classification can switch to a new job with similar code classification 15-1211.
- If the new job is a promotion from the previous one, then too, USCIS allows a switch and accepts the new SOC code.
- The new salary should be similar and not be significantly different from the previous one. Changes in salary due to natural career growth or moving to a higher cost-of-living area is acceptable.
Do I have to notify USCIS about the job change?
While the forms are signed by both the employer and the employee, it is technically the individual employees responsibility to notify USCIS. This forms a part of the applicant's I-485 adjustment of status application. 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 Laborcertification or I-140.
Is there any form one can use to notify USCIS?
Yes, there is. In addition to writing a letter to the USCIS to describe the changes, you should file Form I-485 Supplement J.
Form I-485 Supplement J is used for -
- all new I-485 filings where it is used to confirm that the job offered in the underlying I-140 immigrant petition (pending or approved) is still valid and offered to the beneficiary
- all requests for AC21 portability of pending I-485 applications where the beneficiary aims to transfer their pending I-485 to a new employer or job which is same or similar.
Who may request for H1B Extension using AC21?
Foreign nationals may request to extend their H1B status annually in one-year increments if theirlabor 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-yearextensions 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 afinal decision to deny the labor certification application; revoke an approved labor certification; deny thepending 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 extensionsuntil 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 theAC21 provisions.