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Ever-moving Target: USCIS Issues Memo Regarding Some Provisions of AC21 Including Portability

The USCIS (United States Citizenship and Immigration Service) has just issued a new memorandum regarding certain provisions of AC21 (The American Competitiveness in the Twenty-First Century Act). AC21 provided H-1B extensions beyond six years and portability for H-1B and adjustment of status applicants among other provisions. This new memo provides answers to several questions employers and their foreign national employees have struggled with since AC21 was passed in 2000. It reflects a liberal interpretation of AC21 and provides much needed flexibility for both employers and foreign nationals. The memo takes into account prior guidance provided by the USCIS, including the 2002 interim rule allowing the "concurrent filing" of the I-140 immigrant petition and the I-485 adjustment of status application.

Specifically, the memo addresses questions related to: (1) a foreign national's ability to change jobs while his or her adjustment of status is pending (AOS portability); (2) the circumstances under which H-1B status may be extended beyond six years; and (3) clarifies the circumstances under which an H-1B worker may change employers (H-1B portability) even without a valid I-94.

With respect to portability during the adjustment of status process, the guidance includes (but is not limited to) the following instructions:

(1) Even job changes that occur PRIOR to the I-485 pending for 180 days may still be eligible for portability, assuming the original I-140 job offer was bona fide;

(2) If a foreign national has changed jobs based on a concurrently filed I-140/I-485 that have been pending for 180 days, but the I-140 has not yet been approved, the CIS has discretion to approve the I-140/I-485 if satisfied that the new job is in the "same or similar" occupational classification;

(3) In determining if a job is "same or similar", the CIS is to consider the job duties, the DOT/SOC code, and whether there is a substantial discrepancy between the previous and the new wage, but NOT a change in geographic location. The job can be in a different geographic location but still meet the "same or similar" test;

(4) Multinational managers and executives can avail themselves of portability even for an unrelated company, provided the other aspects of the "same or similar" test are met; and

(5) An I-140 is NOT portable when the I-140 is withdrawn before the I-485 has been pending for 180 days OR if the I-140 is denied or revoked at ANY time except based on a withdrawal submitted after the I-485 has been pending 180 days.

The memo also addresses certain issues related to extensions of H-1B status, including:

(1) Employers may combine in a single application requests for an extension which include both time remaining in the initial six year period and the 7th year extension, provided the labor certification or I-140 immigrant petition has been pending for more than 365 days;

(2) An H extension beyond six years may be granted based on a labor certification filed more than 365 days prior to the filing of the H extension even if the employer requesting the H extension is not the same as the labor certification employer;

(3) In a labor substitution context, only the "current" beneficiary (the one who was substituted into the labor certification) is eligible for the extension beyond six years; and

(4) In order to qualify for an H extension beyond six years based on the fact that the foreign national cannot proceed with the filing of an adjustment of status because an immigrant visa number is not available, the I-140 must be approved.

Finally, the memo clarifies that an H-1B worker may still be eligible to "port" to another H-1B employer even after his/her last I-94 has expired if the worker is in a "period of stay authorized by the Attorney General." The memo explains that this would cover situations such as when one employer timely files for an extension of stay, and while that extension is pending, but after the original I-94 expires, a new employer files a "change of employer" petition for the H-1B worker.

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