The Interpretation of AC21: A Long and Winding Road Part I By: Beth Robertie, Esq., Associate “The American Competitiveness in the Twenty-First Century Act of 2000” (AC21 – please see http://www.isn.org/news/20001004070643.html for full text), signed into law in October 2000, presented significant changes to the H-1B nonimmigrant visa program and enacted a “portability provision” for alien beneficiaries who have a pending Application to Adjust Status (I-485), among other things. Today we will discuss the portability provisions of AC21. Tomorrow, we will be examining the provisions of AC21 that affect H-1B extensions. In essence, this legislation was passed in order to alleviate some of the strain imposed by the fact that USCIS is a slow-moving agency, at best. Portability for I-485 Applicants The “portability provision” for I-485 applicants is found in Section 106 of AC21. Section 106 of AC21, entitled “Special Provisions in the Cases of Lengthy Adjudications” allows employment-based Adjustment of Status applicants whose Applications to Adjust Status have been pending for 180 days or more to change jobs or employers without invalidating the underlying Petition for Alien Worker or Application for Alien Employment Certification, with the provision that the new job be in the same or similar occupational classification as the one for which the original petition was filed. Section 106 of AC21 was effective upon enactment. The clear language of the statute is therefore applicable to Applications to Adjust Status that have been pending for more than 180 days. The Service has directly addressed the provisions of AC21 which permit substitution of a job or employer, also known as “porting,” in the instance of concurrent filing of the Petition for Alien Worker and the Application to Adjust Status. Please see the August 4, 2003 Memorandum from William R. Yates, Acting Associate Director for Operations, Bureau of Citizenship and Immigration Services, Department of Homeland Security. I specifically refer you to Section A. of Mr. Yates’s memorandum entitled “Approved Form I-140 Visa Petitions and Form I-485 Applications.” Therein, Mr. Yates notes: labor certification or approval of a Form I-140 employment-based (EB) immigrant petition shall remain valid when an immigrant changes jobs, if: (a) A Form I-485, Application to Adjust Status, on the basis of the EB 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 of approval was initially made. The policy is still in effect and has not changed as a result of implementation of the concurrent filing process. In assessing whether the new job is in the same or similar occupational classification as the one in which Labor Certification was granted, please see the June 19, 2001 Memorandum from Michael A. Pearson, Executive Associate Commissioner, Office of Field Operations, Immigration and Naturalization Service. The Pearson Memorandum states that the new employer should, upon request, supply a letter of employment. The letter must verify the existence of the job offer including new job title, job description, and salary. If the new job is in the same or similar occupational classification as the old job, then portability is not a problem under this provision. Watch this space tomorrow for Part II of our discussion of AC21 relating to H-1B provisions. ______________________________________________________________________________ 本文由范毅禹律师事务所提供 本律师事务所精办各类劳工应聘及专业移民申请 (包括H-1，L-1，EB-1，EB-2，NIW，劳工卡，绿卡等申请)。所有申请由多位美籍律师及拥有15年经验的范毅禹律师亲自处理，我所并特设中英移民网站。内有最新移民新闻资讯及由律师主持的移民问答集，欢迎读者流览查询。 www.Fan-Law.com CALIFORNIA : Fan, Fitzpatrick & Thompson, LLP. 370 E. Glenarm St., Pasadena , CA 91106 Tel: 626-799-3999 Fax: 626-799-9966 MARYLAND : Fan, Fitzpatrick & Thompson, LLP. 230 North Washington Street, Suite 400 , Rockville , MD 20850 Tel: 301-251-2636 Fax: 301-251-0313