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CHANGE IN EMPLOYMENT DURING ADJUDICATION OF ADJUSTMENT OF STATUS BASED ON EMPLOYMENT

AC21 PORTABILITY FOR PENDING I-485 PETITIONS

The American Competitiveness in the 21st Century Act (AC21) permits an individual to seek new employment when the following conditions are met:

  1. New employment must be the “same or similar” occupational classification;
  2. Form I-140 has been approved, or is approvable when filed concurrently with I-485;
  3. Form I-485 has been pending for at least 180 days.

* The new job does not have to be in the same geographic location
* The new job does not have to pay the same or a higher salary
* A new labor certification is not required.

The 180 days is based on calendar days (not business days). The clock starts with the “Received Date” of  I-485 application, as indicated in a I-797 receipt notice.

About the “Same or Similar” position Requirement:

To be eligible for AC21, applicant’s new employment must be the “same or similar” occupational classification to the one requested in initial Form I-140. There is no clear definition of what constitute “same or similar,” but a USCIS adjudicator will consider the following factors:

  • Job Description: job duties of the new employment will be compared with the job descriptions contained on Form I-140 or labor certification;
  • SOC code : the SOC code is an occupational code associated with specific job description indicates weather the new employment is the same or similar occupational classification;
  • Wage information: new salary should not be significantly different from the previous one, however it doesn’t have to be exactly the same or necessarily higher.

Using AC21 if leaving your employer before the 180 days:

Foreigner can leave the  previous employer before his or her I-485 pending for 180 days. It is not the basis for denial of a case. However adjustment of status will be denied if any of the following happens:

  •  I-140 petition is withdrawn by prior employer before applicant’s Form I-485 is pendng for less than 180 days with USCIS; or
  • Original employer’s I-140 petition is denied by the USCIS at any time; or
  • Your approved I-140 is revoked at any time,
  • Employee fails to prove that a bona fide employment relationship existed at the time of filing.

Please talk to immigration attorney before you make a decision to leave your employer.

Notifying USCIS after changing jobs under AC21:

It is recommended that you notify USCIS after changing jobs under AC21 to avoid receiving Notice of Intent to Deny (NOID).