• AC21 Immigration
  • August 28, 2015 | Authors: Wendy Rebecca Barlow; Eliza Grinberg; Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • The American Competitiveness in the 21st Century Act (AC21) allows someone to find new employment in the event that the following three conditions are met:

    • The applicant has an approved I-40 petition, or it is approvable if filed concurrently with a Form I-485 application;
    • The Form I-485 has been pending for a minimum of 180 days and;
    • The new employment is classified as the same or similar occupation.

    Due to a number of issues and questions that have come up because of the AC21, it is important that the United States Citizenship and Immigrations Services adhere to guidelines across their field offices. This will result in less confusion among the I-140 and H-1B petitions filed by applicants.

    THE I-140 AND THE I-485 UNDER 106(C) OF AC21

    In the event that an applicant has an unapproved I-140 and an I-485 application pending for over 180 days, the field offices are instructed to determine if the petition would have been approved, had a decision been rendered within the 180 days. If for some reason, there is an issue which arose after 180 days of the date the petition was filed, the petition should be approved nonetheless. A decision should then be rendered on the I-485 application in order to determine if the new employment classifies as the same or similar occupation.

    REQUEST FOR ADDITIONAL EVIDENCE

    If a request for additional evidence is required to render a decision on the petition, an RFE (request for additional evidence) should be issued to the applicant. If the response to the RFE is sufficient, a decision should be rendered on the I-485 application and a determination of the employment classification is in order.

    The USCIS field offices are instructed to deny any cases in which an RFE was issued and the response is not sufficient to reach an approval. This means that the I-140 petition will be denied and the I-485 application since there is no approved petition to port from.

    SAME OR SIMILAR OCCUPATIONAL CLASSIFICATIONS

    When making determination of “same” or “similar occupation classifications, USCIS takes the following into consideration:

    • Salary/ Wage: If there is a large disparity between the previous wage and the new one, USCIS can classify the new employment as different or not similar for purposes of the I-140 petition. It is important to keep in mind that a difference in wage is not sufficient to deny a petition; however it can be used with other factors in classifying the new employment as not similar and thus, deny the petition.
    • The description of the job and its duties as outlined in the Application for Alien Employment Certification (ETA 750A).
    • The employment code as stated in the initial I-140 petition. This code can either be the DOT or the SOC. In some cases, USCIS refers to both to make the determination of the employment classification.

    However USCIS field and district offices should not deny an I-140 petition because of differences in geographic location. The deciding factor in the approval of the petition is of the new employment is similar or the same as the previous employment. Geographic location does not matter.

    Managers and Executives may be approved if their new employment is within an unrelated company. The basis for this approval is that the managerial or executive duties are still relatively similar. In cases where the duties are considerably different, the employment may be classified as not similar and the petition may be denied.

    In an I-140 petition, it is also possible for an applicant to port to a self-employment position. In this case, all of the previous requirements still need to be met. The self-employment must be similar or the same as the previous employment as stated on the original I-140 petition. It is, however, still required that the initial I-140 petitioner’s intent to employ be legitimate and the applicant must have had the intent to undertake the petitioner’s employment offer. In order to verify the accuracy of the intent of the petitioner and applicant, USCIS may issue an RFE requesting supporting documentation.

    The good news is that, aside from a few exceptions, the new employer will not have to provide a new labor certification. This is, of course, if the new employment does not deviate from §106(c).