AC21 portability is a fuzzy area of green card law, the FAQ's here are intended for informational purposes based on our best research efforts, these laws and rules are always changing. Please consult a good immigration lawyer before making any decisions.

General FAQ’s

1. What is AC21?

AC21 stands for the The American Competitiveness in the Twenty-first Century Act (AC21), this is particularly of relevance to people who have applied for Adjustment of Status (AOS) while residing in the United States.

2. Why is AC21 relevant to AOS applicants?

This is relevant because as long as the person had previously filed the I-485 when the priority dates were current and that I-485 remains pending, one does not need to have a current priority date in order to change jobs under AC21. This is essentially “portability”

3. Under what circumstances is portability applicable?

a. I-485 is pending due to unavailability of visa numbers or admin delays for more than 180 days
b. the new job is same or similar in nature

4. Is it the receipt date or the notice date that governs the counting of the 180-day period under AC21?

Based upon the wording of the law and the USCIS interpretation of AC21, the 180 days should be counted from the date the USCIS receives the filing at one of its Service Centers i.e. the receipt date.

5. What are all these acronyms I keep hearing?

RFE - Request for Evidence, USCIS can issue one for anything - birth certificates, educational qualifications, marriage proof, employment proof, medical tests or anything they feel is inadequate
NOID - Notice of Intent to Deny, USCIS issues this if they intend to deny your green card application, you will then get 15-30 days to respond to file a MTR
MTR - Motion to Reopen, you ask the USCIS to reconsider your application based on new evidence or error on their part.
EAD - Employment Authorization Document, given to you after you apply for I-485, seperate application required, allowing you to work, and needs to be is renewed for one or two years.
AP - Advanced Parole, travel document issued to you after you apply for I-485, seperate application required and needs to be renewed every year

Job loss or Layoff related

1. If I lose my job before the 180-day period. Can I still use portability?

Quite possibly, provided the I-485 remains in pending (unadjudicated) status for at least 180 days. It is the I-485 processing time that is important, not when the beneficiary changes positions. This is because the "green card" (GC) is based upon a future job offer. The person is not required to have worked for the GC-sponsoring employer prior to filing or obtaining the GC. Accordingly, it appears the AC21 law did not intend to change the prior law, which only requires a future job offer with respect to the GC sponsorship in employment-based cases.

2. My new job has a different title, but the same basic duties as the job described in the labor certification. Will that work?

It should, though USCIS makes a case-by-case determination. The requirement of "same or similar" is determined by the description of the essential job duties. The title may change, as different companies use different titles. The USCIS position appears to be that the core job duties should be essentially the same or similar in order for the USCIS to approve the I-485 with a new employer.

3. What is meant by "same or similar" job?

The position must have the same essential job duties. For example, in the computer field the position can use different software and computer languages but it must require the same basic functions. A programmer is still a programmer, even if using different languages or working on a different application.

4. My existing employer intends to withdraw the I-140 If I change my job, how will this affect my green card application?

While your I-485 is your own application and the employer cannot withdraw it, the entire application rests on the I-140, which is the employer's application. Under previous law, the employer controlled the I-140 throughout the process. Withdrawal of the I-140 meant denial of the I-485. This matter has not been addressed under AC21. At this point, it appears that if the employer were to withdraw the I-140, the USCIS possibly could issue a notice to the beneficiary with respect to the processing of the I-485. The beneficiary might then have the opportunity to respond by showing another job offer. USCIS has not provided specific instructions or regulations as to how this type of situation should be handled in light of AC21.

5. What may happen is my employer withdraws my I-140?

Your green card is based on your future job not the current, so first you must look for a same or similar job, assuming you get a job, these are the following hypothetical scenarios:
a) during adjudication USCIS will issue a RFE, you respond showing you have a same/similar job and thats it
b)USCIS issues a NOID and you then respond with a MTR and they open or deny your case
c) there is no RFE or MTR and you get your green card

6. If I change jobs, does my sponsoring employer have to withdraw my I-140 or tell USCIS?

No. Unlike the H-1, where the employer must inform the USCIS of termination of employment, there is no affirmative requirement to tell the USCIS about changes in employment for I-140 beneficiaries or to withdraw the I-140, However as a matter of principle most large companies will withdraw the I-140 to avoid any residual legal issues.

7. Does the new job have to be in the same geographic area as the job in the labor certification?

No. Again based on the June 2001 USCIS Guidance, there are no geographic limitations on the job.

8. Should I inform USCIS I intend to use AC21 portability provisions?

AC21 does not state that notification to USCIS is required. The USCIS guidance on the issue says that it is "expected" that a letter will be sent to USCIS. There is also no particular format for sending a letter advising of the change in jobs.

Same or Similar Jobs

1. What criteria does the USCIS use to define same or similar jobs?

This is probably one of the most tricky and hairy but key question that a person in this situation will have on their minds. Aa per the Aytes memo of Dec 27th 2005
http://www.uscis.gov/files/pressrelease/AC21Intrm122705.pdf

When making a determination if the new employment is the “same or similar” occupational classification in comparison to the employment in the initial I-140, adjudicators should consider the following factors:
A. Description of the job duties contained in the ETA 750A or the initial I-140 and the job duties of the new employment to determine if they are the “same or similar” occupational classification.
B. The DOT code and/or Standard Occupational Classification (SOC) code assigned to the initial I-140 employment for petitions that have a certified ETA 750A or consider what DOT and/or SOC code is appropriate for the position for an initial I-140 that did not require a certified ETA 750A. Then consider the DOT code and/or SOC code, whichever is appropriate for the new position to make a determination of “same or similar” occupational classification.
C. A substantial discrepancy between the previous and the new wage.

2. Where can I find the SOC codes?

You can find Standard Occupational Classification (SOC) occupational codes here:
http://www.bls.gov/soc/soc_majo.htm

3. What is the SOC code on my application?

You can find the SOC code on our original Labor Certification application (it is unlikely you have a copy) or on your Approved Labor Certification from the Dept of Labor.

4. So what is a similar job?

This is a subjective question, however if you look at the SOC codes there are 23 major codes (we have shown 5 below for illustration purposes)
11-0000 Management Occupations
13-0000 Business and Financial Operations Occupations
15-0000 Computer and Mathematical Occupations
17-0000 Architecture and Engineering Occupations
19-0000 Life, Physical, and Social Science Occupations

The 15-0000 category is further sub divided as
15-1010 Computer and Information Scientists, Research

15-1011 Computer and Information Scientists, Research

15-1020 Computer Programmers

15-1021 Computer Programmers

15-1030 Computer Software Engineers

15-1031 Computer Software Engineers, Applications

15-1032 Computer Software Engineers, Systems Software

15-1040 Computer Support Specialists

15-1041 Computer Support Specialists

15-1050 Computer Systems Analysts

15-1051 Computer Systems Analysts

15-1060 Database Administrators

15-1061 Database Administrators

15-1070 Network and Computer Systems Administrators

15-1071 Network and Computer Systems Administrators

15-1080 Network Systems and Data Communications Analysts

15-1081 Network Systems and Data Communications Analysts

15-1090 Miscellaneous Computer Specialists

15-1099 Computer Specialists, All Other

So it is possible that USCIS may consider all jobs in the 15-000 category as similar or may apply a more granular interpteration like 15-1030 is what is similar so you can either be 15-1031 or 15-1032
Couple of thisng to consider
- The issue of proving same / similar job will arise most likely only if your original employer cancels / revokes your I-140
- This is a subjective interpretation, so in the event you get a Notice to Deny or any similar response always approach a good immigration lawyer, they can help proving your case to the USCIS, In general it is this website's opinion that the broad category example 15-000 should be used to determine same or similar jobs.

AC21 and H1B

1. Am I on an H1B or EAD?

If you have a valid H1B stamped in your passport and have an EAD then this depends on what status was used when you last entered the US, if you used your H1B you are on H1B, if you used your Advanced Parole to enter the US, you are on a EAD for work purposes.

2. Under above situation can I switch back to a H1B?

Yes, you will have to leave the country and enter with a valid H1B visa.

3. If I lose my job while on EAD, can I get a new job as an H1B?

Yes, if your new employer agrees to sponsor a H1B.

3. Under above situation should it be a same or similar job ?

Not for the H1B, but yes for getting the Green card. In above case if the USCIS while adjudicating your green card, requests you prove the job is similar or same you must have one.

More detailed FAQ's on H1B extensions beyond sixth year and AC21 Portability (pdf)
http://ac21portability.com/morefaq1.pdf


USCIS Memo's governing AC21 Portability

Since this is a fuzzy area of green card law, most of the rules are in effect based on memo's and field office guidelines issues over the past 5-7 years, here are the memos dated from oldest to latest

Yates Memo of August 4th, 2003
http://www.uscis.gov/files/pressrelease/I140_AC21_8403.pdf

Yates Memo of May 12th, 2005
http://www.uscis.gov/files/pressrelease/AC21intrm051205.pdf

Aytes Memo of December 27th, 2005
http://www.uscis.gov/files/pressrelease/AC21Intrm122705.pdf

Aytes Memo of December 6th, 2006
http://www.uscis.gov/files/pressrelease/PeriodsofAdm120506.pdf

Neufeld Memo of May 30th, 2008
http://www.uscis.gov/files/nativedocuments/AC21_30May08.pdf

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Let us know if you have more suggestions for FAQ’s at: contact@ac21portability.com


AC21 portability is a fuzzy area of green card law, the FAQ's here are intended for informational purposes based on our best research efforts, these laws and rules are always changing. Please consult a good immigration lawyer before making any decisions.