When a foreign national is sponsored for green card status based on employment, generally there are 3 stages for this process. The first stage is Labor Certification, the second stage is I-140 and the third stage is I-485 (Adjustment of Status). The law allows the sponsored foreign national to change employers in the third stage, under certain circumstances. This is known as The American Competitiveness in the 21st Century Act (AC21) portability.

Generally an individual can file for AC21 in two cases.

• After the individual starts his or her employment with the new employer.
• If there is an RFE (Request for Evidence) or NOID (Notice of Intent to Deny) issued by USCIS.

There are certain distinct advantages to filing AC21 upon starting a new job, as opposed to doing so after receipt of a RFE/NOID:

• You will control the timing of preparing and filing the AC21 documents — you will have time and be able to carefully prepare the documents required by the employee and your employer will have time to prepare a good employment verification letter. On the other hand, if you wait for RFE/NOID, you will most likely be under a 30-day filing window to prepare and file the RFE/NOID response and rushing the preparation and filing of the documents will affect their quality and ultimately your case will not be presented as well as it could have been.
• Your employee/employer relationship is likely to be very good - your employer is not likely to object to providing an employment verification letter soon after you start work. On the other hand, if you wait for an RFE/NOID and the employer has grown unhappy, there is a strain on the employer/employee relationship or if the employer’s business is not doing well, it may be more difficult to ask for and obtain an employment verification letter.
• You can change the attorney of record on your I-485 — if your former employer’s attorney is the attorney on record for the I-485, it is good idea to change the attorney of record as early as possible. As indicated above, your former employer’s attorney may not be motivated or willing to share with you promptly time-sensitive correspondence from USCIS, including RFE/NOIDs. Having your own attorney receive and address such correspondence as early as possible is important.

You would be eligible to file for AC21 if the following conditions are met:

• I-140 petition must be approved;

  To qualify for AC21 portability, a foreign national must be the beneficiary of an APPROVED labor certification application (stage 1 of the green card process), and an APPROVED I-140 petition (stage 2 of the green card process). Documentation of an approved I-140 is met by having a copy of the I-140 petition approval notice. Some people are tempted to change employers with an I-485 application pending 180 days and a pending I-140 (rather than approved I-140). This would be extremely risky and is not recommended.

• I-485 application must be pending over 180 days; and

  In addition to an approved I-140, to qualify for AC21 portability, a foreign national's I-485 application must be pending over 180 days. The I-485 is the 3rd/final stage of the green card process. Documentation of the I-485 application pending over 180 days is also potentially met by having a copy of the I-485 receipt notice; however, sometimes calculating the number of days an I-485 application has been pending can be complicated, particularly for individuals who filed I-485 applications in July 2007 or early August 2007, because USCIS received a record number of I-485 filings during that period and I-485 receipt notices often fail to list the correct date. In general, the date that the I-485 application arrived at USCIS should be considered the "received date" and that date should count as day 1 in calculating the 180 days.

• New employment must be within the "same or similar" occupational classification.

  In addition to having an approved I-140 petition and I-485 application pending more than 180 days, to qualify for AC21 portability, the foreign national must have a new position which is within the "same or similar" occupational classification. USCIS has not provided regulations on this issue, but it is generally felt that "same or similar" occupational classification ties to the US Dept of Labor's job classification listed on the labor certification application, which should also correspond to a job code listed on the I-140 petition. Sometimes this analysis is very straightforward; but it can often be complicated. One recurring issue relates to a technical employee who is now eligible for a managerial position. The managerial position could arguably be in a different job classification and may not qualify under AC21 portability. We can help evaluate your job classification and help you determine a "same or similar" job position.

If a foreign national does take advantage of AC21 portability and changes employment, then USCIS recommends that the individual update the USCIS office where the I-485 application is pending. Normally the update would include a letter from the individual (or preferably the new employer) attesting to the new position, with a discussion of the new job and how it is within the same or similar occupation as the prior labor certification and I-140. Further, the AC21 portability filing should include documentation that the sponsored foreign national did work for the initial sponsoring company for the first 180 days the I-485 application was pending. Useful documentation on this issue could include payroll records and W-2s from the initial sponsoring employer.

If, as a result of new employment, the foreign national moves to a new home address, then the foreign national must update USCIS of his or her new address, using Form AR-11. Be sure to update USCIS for all family members with I-485 applications pending, as USCIS does mail notices directly to home addresses in the I-485 process, including eventually the I-551 permanent resident card. Also, USCIS mails will not be forwarded by the US Post Office even if a the moving party has informed the US Post Office of his/her moving. This creates a lot of problems for people who do not know this rule.

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