The I-140 should be APPROVED AND I-485 filed for 180 days to use AC-21.
You can use the EAD from day one to work at any other job you would like.
There is no 180 days for the EAD.
Yates May 2005 Memo on AC21 and I-140s
Posted May 27, 2005
As was announced in our May 20, 2005 MurthyBulletin article, May 2005 Yates Memo on Various AC21 Issues!, the USCIS released a memorandum on May 12, 2005 addressing a number of significant issues on the American Competitiveness in the Twenty-First Century Law of 2000 (AC21).
Legal Effect of the May 2005 Memo
The Memo from Mr. Yates notes that the interim guidance it provides will be in effect until forthcoming regulations are published as a final rule. This is interesting, since many have been awaiting the regulations on AC21 since it became law in October 2000. Mr. Yates indicates that the proposed regulation may be more restrictive than the Memo. As a matter of legal strategy, therefore, it may be safest not to rely exclusively on the most favorable aspects of this Memo when making a decision on whether to terminate employment with a green card sponsor and move to an alternative employer under AC21. The Memo defines itself as a supplement to the existing guidance and that prior memos on AC21 remain.
I-140 and I-485 Filed Concurrently and Pending for 180 Days
As reported to MurthyDotCom and MurthyBulletin readers in the article cited above, this May 2005 Memo is in question-and-answer format. It poses the question, how is the USCIS to process I-140 petitions that are unapproved in situations where the I-485 was concurrently-filed and has been pending for at least 180 days and the individual is attempting to use the AC21 portability provisions.
A prior USCIS Memo on this topic essentially required that the I-140 be approved in order for an individual to use AC21. The job offer underlying the I-140 had to remain in effect until the I-140 was approved. Thus, if the case reached the 180-day mark, but the I-140 was not yet approved, the individual could not safely move to a new job under AC21. See our Aug 12, 2003 MurthyBulletin article, BCIS on I-485 Portability after I-140 Revocation, available on MurthyDotCom.
This May 2005 Memo from Mr. Yates takes a different approach to this situation. The Memo addresses the situation in which the foreign national is trying to "port" from one employer to another under AC21 after the I-140 and I-485 have been pending for 180 days, but before the I-140 is approved. In such a situation, the examiner reviewing and adjudicating the file is instructed to review the I-140 and determine if, under the preponderance of the evidence standard, the case is approvable or would have been approvable had it been decided within 180 days. The Memo instructs the examiner that, if the I-140 was approvable but for an ability to pay issue or other matter that came up after its filing, it should be approved. Once the I-140 petition is approved, the I-485 adjustment-of-status application is to be reviewed to determine whether the new position offered to the foreign national is in the same or similar occupational classification as required under AC21.
It is also possible that the USCIS examiner can issue a Request for Evidence (RFE) to resolve a "material post-filing issue" such as the employer's ability to pay the prevailing wage and benefits to the foreign national as required by the U.S. Department of Labor. If the case is found to be approvable based upon the RFE response, the examiner must follow the procedures set forth above.
I-140 Petition Must Be Approved for Portability
The May 2005 Memo clarifies that, in order to use portability, the I-140 petition must be approved at some point. If an RFE is issued on a pending I-140 and the response is not sufficient to warrant approval or no response is filed, then the I-140 must be denied. The I-485 must also be denied following the I-140 denial.
Determination of "Same or Similar" Job for AC21 Portability
Many questions arise about how to determine whether a new job offer fits within AC21's "same or similar" requirement. This May 2005 Memo specifies that the examiner must review the job duties in the labor certification or, if a labor certification is not required, in the I-140. These job duties are to be compared to the new job to determine if they both fall within the same or similar occupational classification. The examiner should look to the Dictionary of Occupational Titles (DOT) code and/or Standard Occupational Classification (SOC) code, assigned to the I-140 and/or labor certification and compare this with the DOT or SOC code that is appropriate for the new position. Thus, although not stated, this argument and analysis should accompany the request for approval under AC21 portability.
Geographic Location Not a Limitation for AC21 Portability
It has long been understood that AC21 does not have geographic limitations. The new job can be anywhere within the United States. We at The Law Office of Sheela Murthy, P.C. received an Administrative Appeals Office (AAO) decision that confirmed this view. The Memo verifies that this is the case.
Wage Difference to Determine Similarity of the New Job
The USCIS has previously stated that differences in the wage rates between the initial green card-sponsored position and the AC21-ported position are permitted. The question is whether the jobs are in the same or similar job category. Thus, a discrepancy in the wages is to be reviewed only to the extent that it is relevant to whether the jobs are the same or similar. The May 2005 Memo from Mr. Yates restates this position.
We would note that, at The Law Office of Sheela Murthy, we have seen AC21 cases approved with great variances in the wage rates between the old job and new job. We have seen an approved case where the wages have literally doubled and cases where the wages have decreased by approximately one third. The key issue is whether the new position or job is in the same or similar job classification.
Multinational Executives Can Use AC21 Portability
There has long been a question as to whether EB1, Multinational Executive Transferees (METs) can use AC21. The Legacy INS voiced concerns about this, since no new job would contain the multinational transferee requirement needed to initially qualify for this category. That is, the beneficiary would not have had the required experience working abroad for the new company, even if it were a multinational company. Some new sponsors would be strictly U.S. companies, without the multinational component. The USCIS never specifically took a position on this issue, however.
Mr. Yates's Memo, fortunately, clarifies that METs can take advantage of the portability provisions of AC21, even for companies that are unrelated to the initial sponsor. The new job still must meet the same or similar job classification requirement. We at The Law Office of Sheela Murthy are pleased with this clarification since it comports with the language and intent of AC21 when it was passed. It has been our experience that the USCIS would approve such cases under AC21, but there was always a lingering fear that the USCIS position on this matter could change for the worse.
Ability of New Sponsor to Pay
The Memo clarifies that there should not be requests for "ability to pay" proof from the new sponsor as part of the I-140 approval process. However, the Memo does state that it would be appropriate to check the legitimacy of the new employer and the job offer in connection with the I-485 approval. So, the new employer may have to show financial viability and prove that there is a valid job offer in order for the foreign national employee and any family members to obtain the I-485 approval.
Self-Employment Allowed for AC21 Portability!
Foreign nationals can port their cases to a self-employed position! This is a very favorable stance, as many foreign nationals desire to establish their own companies and, in that way, control their own destinies. The entrepreneurial spirit is strong among many immigrants. The Memo reiterates the need to show that the new position or job is the same or similar. It also states that the new employer and job offer must be legitimate.
In these situations, the USCIS is to focus upon whether the original job offer was really the intended employment at the time the I-140 and I-485 were filed. That is, the petitioning company must have intended to employ the foreign national beneficiary and the foreign national beneficiary must have intended to accept the position at the time of filing the I-140 and the I-485.
Other Salient Features of the Yates May 2005 Memo
Priority Date Maintained - Using portability under AC21 does not change the applicable priority date assigned to a case.
Qualifying Job Must Exist at Time of Adjudication The foreign national cannot still be seeking same or similar qualifying employment when the examiner reviews his or her case. There must be an appropriate job offer at the time the examiner is ready to make a decision.
Retrogression Does Not Stop the 180-Day Clock AC21 portability applies when the case has been pending for 180 days or longer. If the visa numbers retrogress during this time, the portability provisions still apply. There does not have to be a visa number available in order to port.
