AC-21 MEMO A MOST IMPORTANT DEVELOPMENT IN
EMPLOYMENT BASED IMMIGRATION CASES
By Alan Lee, Esq.†‡
To anyone who follows immigration law or has an employment based
case pending, the memo entitled "Interim Guidance for Processing
Form I-140 Employment Based Immigrant Petitions and Form I-485 and
H-1B petitions Affected by the American Competitiveness in the Twenty-First
Century Act of 2000 (AC 21) (Public Law 106-313)", or "AC-21
Memo" in short which was put out on May 12, 2005, by William
R. Yates, U.S.C.I.S.'s Associate Director for Operations, is easily
the most important policy directive of the agency in employment
based cases thus far in 2005 as it lays out U.S.C.I.S.'s interpretations
on a broad swath of current issues which have been debated by immigration
practitioners and the U.S.C.I.S. recently. The memo may be modified
in the publication of a later regulation, but if and when a regulation
will finally appear is anyone's guess.
The memo covers four areas: A. Under what conditions individuals
can qualify for porting privileges when they obtain new employment
during the processing of their I-485 adjustment of status processing;
B When they are allowed to obtain H-1B extensions past the normal
six year limit when a labor certification or immigrant visa petition
has been filed; C When they are allowed H-1B extensions past six
years when immigrant visa quotas have backed up; D and under what
conditions H-1B holders can qualify for porting privileges when
a new employer files a transfer H-1B petition.
AC-21 allows aliens to port to new employment when their I-140
petitions for alien workers have been approved without losing their
priority dates or I-140 approvals if the porting is done to "same
or similar" employment 180 days after the I-485 adjustment
of status application has been filed. In the first memo section,
U.S.C.I.S. stated the following policies for the processing of I-140
petitions and I-485 applications for adjustment of status when there
is a question of eligibility for I-140 portability benefits under
AC-21:
1 If the I-140 and I-485 applications are filed concurrently, 180
days have passed, but the I-140 has not yet been approved and U.S.C.I.S.
discovers that the alien has already joined another employer, the
U.S.C.I.S. will adjudicate the I-140 by first determining if the
preponderance of the evidence (over 50%) establishes that the case
is approvable or would have been approvable had it had been adjudicated
within 180 days. If the case is approvable, U.S.C.I.S. is to approve
the original petition and then determine if the new position is
in the same or similar occupation. However, if there is a material
issue which arose after filing such as the ability to pay, a referral
for further evidence (RFE) can be sent to attempt to resolve the
issue, and the same procedure should be followed if the petition
is approvable.
2 Once U.S.C.I.S. has issued an RFE in a portability case, it will
deny the I-140 and I-485 if the RFE response does not adequately
address the issues, or the response is that the alien no longer
works for the employer, or no response is received at all.
3 To determine whether a job is the same or similar, U.S.C.I.S.
will look into the new and old job descriptions; and if a labor
certification is involved, examine the Occupational Coding System
(SOC) or Dictionary of Occupational Titles (DOT) code assigned by
Department of Labor or, if no labor certification, consider which
would have been appropriate and compare whichever would be appropriate
with the new job; and also consider whether there is a substantial
discrepancy between the previous wage and the wage by the new employer.
4 In its discussion on the wage of the new employer, the U.S.C.I.S.
states that a difference in wage alone cannot be used as a basis
for denial. However, a substantial difference may be considered
as a factor in determining if the new employment is the same or
similar occupation.
5 The memo clarifies that the geographic location of the new employment
is not a factor under AC-21, and that the new position can be in
any location.
6 Intracompany transferees are allowed to port to unrelated employers.
Thus, an individual obtaining an I-140 preference petition approval
on the basis of the EB-13 category for intracompany transferees
will be able to port to same or similar employment with an entirely
unrelated employer although U.S.C.I.S. indicated that here there
might be factual circumstances such as vastly different job duties
that might keep aliens from porting successfully.
7 Aliens will be able to port to self-employment, which is surprising
to some but welcome -- however, CIS indicated that it would look
hard at these cases to see whether the job is same or similar; whether
the new employer and job offer are legitimate perhaps through an
RFE; and whether the original I-140 petition represented the true
intent of the parties at the time of filing the I-140 and I-485
applications - the I-140 petitioner must have had the intent to
employ the alien at the time of filing the I-140, and the alien
had to have the intent to undertake the employment upon adjustment
of status.
8 A new employer is not required to provide a new labor certification
or proof of the ability to pay. However, since the relevant inquiry
is whether the new job is same or similar, the U.S.C.I.S. can confirm
the legitimacy of the new employer and the job offer through an
RFE. In addition, the public charge issue is a relevant inquiry
in an adjustment of status setting.
9 The U.S.C.I.S. cannot deny portability benefits on the sole basis
that the alien left the employment with the I-140 petitioner prior
to the I-485 pending for 180 days. (This differs from items 1 and
2 as the I-140 in this item has already been approved and 180 days
have not yet passed.) However, U.S.C.I.S. indicated it will examine
these cases closely to determine whether the offer of employment
was bonafide by its language that such action "will not necessarily
render the alien ineligible to port" and "In appropriate
cases additional evidence or investigation may be appropriate."
10 At the time that the I-485 application for adjustment of status
is being adjudicated, the alien must have a new offer of employment
at that time. He/she cannot still be looking around for a new employer.
11 An I-140 is no longer valid for porting purposes when an I-140
is withdrawn before the alien's I-485 has been pending 180 days
or the I-140 has been denied or revoked at any time except if the
revocation is based upon a withdrawal after the I-485 has been pending
for 180 days.
The second section provided advice on the processing of H-1B petitions
where there is a question of eligibility for an H-1B extension past
the six year limit in cases where a labor certification or visa
petition has been filed. Although the normal limit for H-1B stay
in the U.S. is six years, further extensions can be obtained under
AC-21 so long as the labor certification application or I-140 petition
has been pending at least 365 days. The U.S.C.I.S. stated the following
in its memo:
1 Where 365 days have already passed since the labor certification
or employment based petition filing, employers do not have to just
complete the H-1B time to six years and then ask for the additional
year in a separate filing. The maximum period that the U.S.C.I.S.
can give out for H-1B petitions is three years at a time and the
seventh year can now be requested if within the three-year mark
so long as the basic eligibility of 365 days is met.
2 If an alien has already received the seventh year extension but
the labor certification or I-140 petition or I-485 application is
denied before the seventh year begins, the alien is not entitled
to the seventh year.
3 If an I-140/I-485 application is not yet filed in a situation
where the labor certification has been approved, an H-1B petition
extension request past six years cannot be denied solely on the
fact that the I-140 petition has not yet been filed.
4 U.S.C.I.S. will allow a seventh year extension on H-1Bs where
the I-140 petition has been denied and is still on appeal to the
Appeals Adjudication Office (AAO) of the agency since the decision
is not yet final. Although the memo does not speak of situations
in which individuals are appealing in federal court, one would assume
that the policy should be the same.
5 The seventh year extension can be requested before 365 days have
passed if the starting date for the seventh year extension is at
least 365 days from the filing of the labor certification or employment
based petition.
6 In determining who can benefit for a seventh year extension by
virtue of having a labor certification or employment based petition
pend 365 days, U.S.C.I.S. will allow only current beneficiaries
to take advantage for the seventh year extension. This rule is applicable
in cases where the employer has substituted another individual on
the labor certification. In such case, the first applicant for the
labor certification would lose out to the subsequent alien who was
substituted into his or her position.
7 A further extension can be given for an H-1B even if a labor
certification or employment based petition filed over 365 days was
through another employer, and not the one filing for the H-1B extension.
8 An alien is eligible for extensions past six years even where
he/she will not be adjusting status, but will be consular processing
for permanent immigration.
9 H-4 dependents are eligible for continued extensions past six
years. This would mainly apply to situations in which individuals
have been in H-1B status for a number of years and then wish to
stay with their spouses under H-4 status when their spouses switch
over to H-1B from another status. This is of course assuming that
the spouse's total time under H-1B/H-4 status is under six years.
AC-21 allows further extensions past six years even where a labor
certification or employment based petition has not been pending
365 days by the end of the sixth year of H-1B time if the quota
has backed up so that adjustment of status is not possible. In the
third memo section dealing with the processing of H-1B petitions
where there is a question of eligibility for an H-1B extension past
six years when aliens are subject to the per country limitations
of the quota, U.S.C.I.S. affirmed the following:
1 In order to obtain the benefit, the I-140 preference petition
has to be approved and not merely pending. This is actually a much
better interpretation of AC-21 than some U.S.C.I.S. officers had
adopted in previously requiring the I-485 to be filed and pending
before the quota backlogged for the alien to be eligible for extension.
The memo clarifies that only the I-140 must be approved.
2 An extension of H-1B time can be given up to three years, and
the three year period can be given at one time.
3 If there is still a problem with the quota past the three year
extension, aliens can apply for and receive further extensions.
Under AC-21, H-1B holders can port their employment and begin working
for a new employer once the employer has filed a new petition for
the worker. Under prior law, aliens could not commence employment
until the new petition was approved. In the fourth section, U.S.C.I.S.
speaks of the processing of H-1B petitions where there is a question
of the effect of H-1B portability under AC-21:
1 U.S.C.I.S. confirmed that an alien can port employment even if
the I-94 or last approved petition has expired so long as he or
she is in "a period of stay authorized by the Attorney General.
" This covers a situation in which an H-1B extension is filed
during the time that the alien is in status and the first H-1B period
expires during the time of the adjudication. If the alien then finds
another employer who files for an H-1B transfer during the period
of adjudication, the alien can begin to work for the new employer
since the period of time that the petition is pending (even when
the non-immigrant status is expired) is considered a period of stay
authorized by the Attorney General.
2 A "bridge"of petitions is also recognized as possible
under the memo. This would be like the example in the above paragraph,
but adding in a third or even fourth employer filing H-1B transfer
petitions during the time that multiple petitions are still pending
with the U.S.C.I.S. The agency states that successive portability
petitions are allowed although every H-1B portability petition must
separately meet the requirements for H-1B classification and extension
of stay. If any one of the H-1B petitions in the chain is denied,
then the whole chain collapses and the alien would be considered
out of status.
The issues discussed in the AC-21 memo are huge to many immigration
practitioners and aliens, and the U.S.C.I.S., especially Mr. Yates,
is to be complimented for having released such an important and
fair interpretation of the AC-21 statute. It presently resolves
many of the most pressing issues concerning interpretation of the
Act and until a regulation is finally passed, will provide significant
guidance to the public and U.S.C.I.S. examiners on how to deal with
many of the most relevant questions of AC-21.
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