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2. AC21 Frequently Asked Questions
We at The Law Office of Sheela Murthy receive many questions about the
portability provisions of The American Competitiveness in the Twenty-first
Century Act (AC21) for Adjustment of Status applicants. These questions
arise daily in consultations with our clients and on the MurthyForum, as
well as in our weekly MurthyChat. What follows are Frequently Asked
Questions and their answers under the actual law with INS\' present
interpretation. It is important to keep in mind that INS is not bound by
their present interpretation and position, although it is likely that, when
finally issued, their regulations will be consistent with these earlier
interpretations. To provide some comfort and support, Mr. William R. Yates,
Executive Associate Commissioner at INS Headquarters, Washington, D.C., has
advised us at various meetings that a good-faith and reasonable
interpretation of the AC21 should not and will not subject one to penalties
for violations of the law.
For additional background, there are a number of articles we have written on
AC21 including "INS Finally Issues its Initial Guidance on AC21 in July
2001" .
Essentially, AC21 allows for approval of employment-based adjustment of
status applications through an employment offer other than the one contained
in the labor certification and I-140, provided certain requirements are met.
Those eligibility requirements under section 106(c) of AC21 are that (a) the
I-485, Application for Adjustment of Status, must be pending (unadjudicated)
for 180 days or more; and (b) the new job must be the same as, or similar
to, the job described in the labor certification and I-140 petition. As of
this March 2002 writing (and as regular MURTHYBULLETIN and MurthyDotCom
readers are aware), the INS has still not issued any regulations under
AC21.Therefore, much uncertainty still remains with respect to many matters.
--------
Question 1 : Is it the receipt date or the notice date that governs the
counting of the 180-day period under AC21?
Answer : Based upon the wording of the law and the INS interpretation of
AC21, the 180 days should be counted from the date the INS receives the
filing at one of its Service Centers. This is not the notice date, which
reflects the several days or weeks the INS takes to issue the Receipt
Notice. The 180 days are calendar days, not business days.
--------
Question 2 : I lost my job before the 180-day period. Can I still use
portability?
Answer : Yes, provided the I-485 remains in pending (unadjudicated) status
for at least 180 days. It is the I-485 processing time that is important,
not when the beneficiary changes positions. This is because the "green card"
(GC) is based upon a future job offer. The person is not required to have
worked for the GC-sponsoring employer prior to filing or obtaining the GC.
Accordingly, the AC21 law did not intend to change the prior law, which only
requires a future job offer with respect to the GC sponsorship in
employment-based cases.
--------
Question 3 : I never worked for my sponsoring employer. It was a future job
offer. Can I use AC21 portability?
Answer : Yes, under the same circumstances as Question 2.
--------
Question 4 : My new job has a different title, but the same basic duties as
the job described in the labor certification. Will that work?
Answer : It should, though INS makes a case-by-case determination. The
requirement of "same or similar" is determined by the description of the ess
ential job duties. The title may change, as different companies use
different titles. The INS position appears to be that the core job duties
should be essentially the same or similar in order for the INS to approve
the I-485 with a new employer.
--------
Question 5 : What is meant by "same or similar" job?
Answer : The position must have the same essential job duties. For exam
We at The Law Office of Sheela Murthy receive many questions about the
portability provisions of The American Competitiveness in the Twenty-first
Century Act (AC21) for Adjustment of Status applicants. These questions
arise daily in consultations with our clients and on the MurthyForum, as
well as in our weekly MurthyChat. What follows are Frequently Asked
Questions and their answers under the actual law with INS\' present
interpretation. It is important to keep in mind that INS is not bound by
their present interpretation and position, although it is likely that, when
finally issued, their regulations will be consistent with these earlier
interpretations. To provide some comfort and support, Mr. William R. Yates,
Executive Associate Commissioner at INS Headquarters, Washington, D.C., has
advised us at various meetings that a good-faith and reasonable
interpretation of the AC21 should not and will not subject one to penalties
for violations of the law.
For additional background, there are a number of articles we have written on
AC21 including "INS Finally Issues its Initial Guidance on AC21 in July
2001" .
Essentially, AC21 allows for approval of employment-based adjustment of
status applications through an employment offer other than the one contained
in the labor certification and I-140, provided certain requirements are met.
Those eligibility requirements under section 106(c) of AC21 are that (a) the
I-485, Application for Adjustment of Status, must be pending (unadjudicated)
for 180 days or more; and (b) the new job must be the same as, or similar
to, the job described in the labor certification and I-140 petition. As of
this March 2002 writing (and as regular MURTHYBULLETIN and MurthyDotCom
readers are aware), the INS has still not issued any regulations under
AC21.Therefore, much uncertainty still remains with respect to many matters.
--------
Question 1 : Is it the receipt date or the notice date that governs the
counting of the 180-day period under AC21?
Answer : Based upon the wording of the law and the INS interpretation of
AC21, the 180 days should be counted from the date the INS receives the
filing at one of its Service Centers. This is not the notice date, which
reflects the several days or weeks the INS takes to issue the Receipt
Notice. The 180 days are calendar days, not business days.
--------
Question 2 : I lost my job before the 180-day period. Can I still use
portability?
Answer : Yes, provided the I-485 remains in pending (unadjudicated) status
for at least 180 days. It is the I-485 processing time that is important,
not when the beneficiary changes positions. This is because the "green card"
(GC) is based upon a future job offer. The person is not required to have
worked for the GC-sponsoring employer prior to filing or obtaining the GC.
Accordingly, the AC21 law did not intend to change the prior law, which only
requires a future job offer with respect to the GC sponsorship in
employment-based cases.
--------
Question 3 : I never worked for my sponsoring employer. It was a future job
offer. Can I use AC21 portability?
Answer : Yes, under the same circumstances as Question 2.
--------
Question 4 : My new job has a different title, but the same basic duties as
the job described in the labor certification. Will that work?
Answer : It should, though INS makes a case-by-case determination. The
requirement of "same or similar" is determined by the description of the ess
ential job duties. The title may change, as different companies use
different titles. The INS position appears to be that the core job duties
should be essentially the same or similar in order for the INS to approve
the I-485 with a new employer.
--------
Question 5 : What is meant by "same or similar" job?
Answer : The position must have the same essential job duties. For exam