AC21-update

[ginnu]

Matthew Oh Attorney Reporting


05/23/2009: AC-21 Change of Employer and Fallacy of Belief That Terms of Labor Certifications Filed by Former Employer Was Same With H-1B or L-1 Terms of Employment

Current economic recession and change of environment force EB-485 applicants to change employment invoking AC-21 portability. To invoke AC-21 portability, the foreign worker must prove that the new employment is a "same" or "similar" occupational classification. The adjudicators are currently guided by the USCIS so-called "AC-21 Memorandums" of Yates, Aytes, and Neufeld. When it comes to determination of what constitutes "same" or "similar," there are still room for different interpretations by individual adjudicators, especially when the new employment faills within the same occupational classification under the former DOT occupational classification system or the current OES/SOC occupational classification system of O*Net. Since over 10,000 occupational classifications under the old DOT system has been reclassified into less than 900 occupational classifications under the O*Net system, using of the O*Net occupational classifications substantially expands the scope and parameters of "same" or "similar" occupational classification for the purpose of AC-21 portability as one occupational classification under the O*Net system encompasses a large number of different occupational classifications under the old DOT system. Accordingly, "same" or "similar" occupational classification determination has been fairly broadly applied by the adjudicators in adjudicating AC-21 portability. However, there are still certain thresholds the foreign workers must establish beyond the job title, job description, and qualification requirements in the labor certification application and the terms of new employment. For instance, adjudicators also examine salary differences to determine "same" and "similar" occupational classification issues.


Currently, a number of 485 applicants who want to invoke AC-21 portability and change of employment face a serious problem because of their inability to access the certified labor certification applications when former employers refuse to release the document. When it comes to preservation of record and evidence, these foreign workers tend to neglect keeping a good copy of such record in their files. Some foreign workers even fall into a naivete to assume that the employer filed a labor certificxation for an occupation that matches with their H-1B employment occupational classification and employment terms and conditions. Reality may be different depending on the employer's needs for so-called "permanent" employment. Accordingly, when they have no knowledge or access to the certifified labor certification applications, they face a srious problem as to whether the new employment falls under a same or similar occupational classfication under the certified labor certification applications. Unless the employers or their legal counsels are willing to release a copy of the application, the problem becomes critical since the certified labor certification is considered a government record that is protected under the employer's privacy right and not subject to release through Freedom of Information Request process. For the reasons, there is no easy solution to tackle the problem.


When the labor certification used old form of ETA 750, the employees were asked to sign on Part B which is alien qualification attestations and the employers in most cases did not release the Part A, the employer requirement, to the employees. Beginning from March 28, 2005, the DOL started using a new form ETA 9089 which requires attestations to the application by employers, employees, and representatives. Supposedly, the whole document of ETA 9089 should be released to the alien employees before they are required to sign in signature box in certain page. Because of the new structure of the form, it may not comfort with the rule for the employers just to release Part J and K of the application to alien employees for their signature. This change gives the alien employees an opportunity to examine and even keep a copy of whole text of application for their individual files such that they be better prepared for AC-21 change of employment down the road. In immigration journey, record-keeping is critically important, particularly when the whole journey can take years and years because of the visa number retrogression.