One of the biggest areas of concern for foreign nationals now if what happens if they are laid off or find another job before their permanent residence is approved. Under immigration laws, specifically the American Competitiveness in the 21st Century Act (AC21), the US government introduced some job flexibility to foreign nationals with long-pending permanent residence applications.AC21 provides that a person's labor certification or I-140 approval remains valid when an alien changes jobs if:
(a) A Form I-485, Application to Adjust Status, on the basis of the immigrant petition has been filed and remained unadjudicated for 180 days or more; and
(b) The new job is in the same or similar occupational classification as the job for which the certification or approval was initially made.
This means that a foreign national can change positions within the same employer, or even change employers and locations, provided that the new position is in the "same or similar occupational classification."
What does "same or similar occupational classification" mean?
The AC21 decision is based on the duties of the position, not the title. Many people think that if they are moving from Engineer 1 to Engineer 2, they are safe, or that if they move from Engineer 1 to Software Analyst, they will have problems. This is not necessarily the case. USCIS refers to the Dictionary of Occupational Titles (DOT) for guidance. CIS advises comparing the DOT code assigned to the original position, and that attached to the new position, to see if they are "same or similar." A Programmer does not have to stay a programmer forever, however she could not move to a Manager role and use AC21.
Can I use AC21 to "port" to self employment?
Yes. USCIS guidance from December 2005 allows this, if the "same or similar" requirements are met.
What if I leave the original employer before the 485 is pending for 180 days?
The December 2005 memo explains that just you leave the employer before 180 days, does not make you ineligible to port to similar employment. There must have been a bona fide job offer by the first employer, and the you must have intended to take that job.
What if my original employer withdraws my I-140?
If the employer withdraws the I-140 before the 485 has been pending for 180 days, you are not portable. This is why we recommend not porting until after 180 days.
What if my I-140 is denied?
AC21 portability only applies if the I-140 was approvable when filed and CIS has said that it must actually be approved before a favorable decision on portability can be made.
How does portability affect my priority date?
Your priority date stays the same and continues to be the date that the labor cert or I-140 (if no labor cert.) was first filed.
What happens if I am laid off and can't find a new job?
This is tricky situation. In theory, the permanent residence process is for a future opening, so that you don't have to currently have a position until the 485 is approved. However, CIS has recently been "pre-adjudicating" cases even though the priority date might be very backlogged. In many of these cases, CIS has issued Requests for Evidence, looking for updated letters confirming an offer of employment. A person who is unemployed clearly cannot provide such a letter, and it is possible that these 485s might be denied.
For more AC21 information, see the USCIS guidance memos:
August 2003
May 2005
December 2005
May 2008
Photo by: http://www.flickr.com/photos/alberto_sechi/2231789372/
(a) A Form I-485, Application to Adjust Status, on the basis of the immigrant petition has been filed and remained unadjudicated for 180 days or more; and
(b) The new job is in the same or similar occupational classification as the job for which the certification or approval was initially made.
This means that a foreign national can change positions within the same employer, or even change employers and locations, provided that the new position is in the "same or similar occupational classification."
What does "same or similar occupational classification" mean?
The AC21 decision is based on the duties of the position, not the title. Many people think that if they are moving from Engineer 1 to Engineer 2, they are safe, or that if they move from Engineer 1 to Software Analyst, they will have problems. This is not necessarily the case. USCIS refers to the Dictionary of Occupational Titles (DOT) for guidance. CIS advises comparing the DOT code assigned to the original position, and that attached to the new position, to see if they are "same or similar." A Programmer does not have to stay a programmer forever, however she could not move to a Manager role and use AC21.
Can I use AC21 to "port" to self employment?
Yes. USCIS guidance from December 2005 allows this, if the "same or similar" requirements are met.
What if I leave the original employer before the 485 is pending for 180 days?
The December 2005 memo explains that just you leave the employer before 180 days, does not make you ineligible to port to similar employment. There must have been a bona fide job offer by the first employer, and the you must have intended to take that job.
What if my original employer withdraws my I-140?
If the employer withdraws the I-140 before the 485 has been pending for 180 days, you are not portable. This is why we recommend not porting until after 180 days.
What if my I-140 is denied?
AC21 portability only applies if the I-140 was approvable when filed and CIS has said that it must actually be approved before a favorable decision on portability can be made.
How does portability affect my priority date?
Your priority date stays the same and continues to be the date that the labor cert or I-140 (if no labor cert.) was first filed.
What happens if I am laid off and can't find a new job?
This is tricky situation. In theory, the permanent residence process is for a future opening, so that you don't have to currently have a position until the 485 is approved. However, CIS has recently been "pre-adjudicating" cases even though the priority date might be very backlogged. In many of these cases, CIS has issued Requests for Evidence, looking for updated letters confirming an offer of employment. A person who is unemployed clearly cannot provide such a letter, and it is possible that these 485s might be denied.
For more AC21 information, see the USCIS guidance memos:
August 2003
May 2005
December 2005
May 2008
Photo by: http://www.flickr.com/photos/alberto_sechi/2231789372/
