12/30/2007

 AC21 portability is generally available to an individual who is the beneficiary of an approved I-140 and whose I-485 has been pending at least 180 days. The benefits of AC21 portability are available to any otherwise qualified individual, even if there is not an available visa number for his/her case. 

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. Given that some I-485 applicants may be retrogressed for several years, particularly those in the EB3 classification with recent priority dates, this ability to change jobs may be very useful in allowing individuals to progress in their careers or to find new employment in the event of a lay-off. As with any major decision, it is important to be aware of the potential risks involved before changing jobs.  

An applicant whose I-485 adjudication may be delayed by several years as the result of retrogression could be in the situation of having to change jobs not just once, but multiple times. The question of whether one may take advantage of AC21 portability more than once and still obtain the green card approval is neither addressed in the AC21 law, nor in any USCIS policy guidance. It would appear that, provided the basic requirements for AC21 portability are met, one would be eligible to change jobs or employers multiple times pursuant to AC21. 

AC21 requires as well that the applicant have a permanent (non-temporary) job offer as the underlying basis for the green card approval. If one has a history of bouncing from job to job, this could raise questions as to employment stability and whether the individual has a qualifying, permanent job offer. Therefore, when there is a choice with regard to changing jobs, employment stability and the potential for longevity with the new employer are valid concerns.

When explaining the risk of potentially stricter AC21 regulations to I-485 applicants, we are frequently asked, "If I change jobs under AC21 and the regulations are released after that, they won't apply to me, right?" Unfortunately, this is not correct. While it is not possible to predict the content or effective date of any future regulations, they will likely apply at the time of adjudicating the I-485 application, and not just when the job change occurs. In a hypothetical example, if new regulations were to limit the percentage of acceptable salary difference, the officer adjudicating the I-485 could decide that the job change violates the regulations, even if the change occurred months or years before the new regulations were issued.
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Finally, any AC21 applicant, whether impacted by retrogression or not, should be aware that if the petitioning employer revokes the I-140, this can cause complications, possibly including a denial. While the revocation of an I-140 petition by the employer should not cause a denial after one becomes eligible for AC21 portability, the procedures applied sometimes create problems.