Documents required for AC21 filing (AOS portability)

[DanielaDeLaVega]

Can someone tell me if an employer is required by law to give a foreign national employee a copy of Form ETA 750, Part A, and the I-140 approval notice? Since the law allows an employee to port his adjustment of status to a new employer, and the new employer needs the information on the ETA 750A and I-140 approval to determine if the employee is eligible to port, it seems unlawful to hold this documentation from the employee. What does anyone think about this? Can someone point me to something in the INA book or state Bar ethics? Thanks!

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[TheRealCanadian]

Can someone tell me if an employer is required by law to give a foreign national employee a copy of Form ETA 750, Part A, and the I-140 approval notice?

They are not required.

the new employer needs the information on the ETA 750A and I-140 approval to determine if the employee is eligible to port, it seems unlawful to hold this documentation from the employee.

First off, there is nothing required in the I-140 approval. Either one is approved or not, and the original approval notice isn't required. Second, the ETA750A isn't necessary either; the AC21 requirements of "same or similar" are sufficiently broad that only common sense is required, not the ETA750A.

 

[DanielaDeLaVega]

They are not required.

First off, there is nothing required in the I-140 approval. Either one is approved or not, and the original approval notice isn't required. Second, the ETA750A isn't necessary either; the AC21 requirements of "same or similar" are sufficiently broad that only common sense is required, not the ETA750A.

Thanks for your reply, Canadian.

In order to port, the beneficiary needs to document, among other things, the following:

(1) The I-140 petition was approved;
(2) The I-485 was filed at least 180 days prior to the potential port date; and
(3) The position he wants to port to is the "same or similar" to the position for which labor certification was granted.

The beneficiary should have documentation of Item (2), ie the I-485 receipt notice. However, the beneficiary may not necessary have documentation of (1) or (3), since the I-140 and labor cert belong to the employer.

It makes sense that the new employer would require documentation of (1) and (3) before making any statement on behalf of the beneficiary. The beneficiary's word or common sense or even his memory probably would not suffice as documentation for the employer, who would be making a statement to the government.

If the previous employer holds Items (1) and (3) from the beneficiary, thereby preventing the beneficiary from providing them to the potential employer, the previous employer could effectively be preventing the beneficiary from porting his AOS. Correct?

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[TheRealCanadian]

It makes sense that the new employer would require documentation of (1) and (3) before making any statement on behalf of the beneficiary. The beneficiary's word or common sense or even his memory probably would not suffice as documentation for the employer, who would be making a statement to the government.

But the employer need not (and probably should not) make any statement to the government beyond the job offer to the alien beneficiary. The new employer is not a party to the I-485 or the I-140, and therefore should not be attesting as to the status of the I-140, how long the I-485 has been pending for, or wether the job or same is similar.

For the I-140 approval status, the alien does not need to prove that it has been approved. USCIS can check its own records. For the length of time the I-485 has been pending, again this is up to USCIS. In the worst case, the alien merely needs to bring this to their attention. For the "same or similar" part, it is up to the alien to make this claim, not the new employer.

It sounds like you are asking the employer to make claims and assertions that it is not in a position to make, nor should it. For my AC21 case, the only thing my new employer provided was the specifics of my new employment. Wether I qualified for AC21 or not was a case I needed to make, not my new employer.

 

[Gc_puli]

AC21 portability beneficiary needs same or similar OCCUPATIONAL CLASSIFICATION to port the job. He/She does not require to know the detalis of LC or 140. Only job title/occ classification must be required (in most cases the beneficiary knows this). This information can be get from the employement offer letter that was given by the previous employer to the beneficiary when filing I-485. The previous company lawyer must give the copy of job offer letter to the beneficiary, as I-485 is the beneficiary's petition.

 

[DSLstart]

UN and other Gurus,
Does it mean that all occupations under 15-0000 Computer and Mathematical Occupations (Standard Occupational Codes) would be considered similar ?because they fall under the basic Computer and Mathematical Occupation.

thanks,

AC21 portability beneficiary needs same or similar OCCUPATIONAL CLASSIFICATION to port the job. He/She does not require to know the detalis of LC or 140. Only job title/occ classification must be required (in most cases the beneficiary knows this). This information can be get from the employement offer letter that was given by the previous employer to the beneficiary when filing I-485. The previous company lawyer must give the copy of job offer letter to the beneficiary, as I-485 is the beneficiary's petition.