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Understanding the AC21: Change of Employer After I-140 Approval

Understanding the AC21: Change of Employer After I-140 Approval

What is the AC21?

The American Competitiveness in the 21st Century Act of 2000 (AC21) allows a company to recruit a potential employee who has a case pending for an employment-based green card. In other words, an employee who is currently being sponsored by one employer can look for a different employer without having to abandon their current application for a green card.

How to Take Advantage of the AC21

Your Form I-485 Application to Register Permanent Residence or Adjust Status must have been pending for at least 180 days, and your Form I-140, Immigrant Petition for Alien Workers must have been approved or filed together with the I-485.

If you meet the above two qualifications, you can use I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) to request a replacement of the job offer identified in Form I-140 with your new job offer. However, the old and new job offers must both be in the same or similar “occupational classification” for the AC21 job portability to apply. Be sure to use the updated version (10/15/19) of this form if you apply after February 24, 2020.

What Does “Same or Similar Occupational Classification” Mean?

“Occupational Classification” is determined by the Department of Labor. They use the Standard Occupational Classification (SOC) to group jobs/occupations. The original I-140 would have identified an SOC code for your first job offer, and USCIS officers will compare that SOC code to the SOC code for your new job offer.

USCIS officers are instructed to consider additional factors, such as:

  • The duties of both positions
  • The skills, experience, education, training, licenses, or certifications needed for each job
  • The wages associated with each job

If you are going from one job as a veterinarian to another job as a veterinarian, you will likely not have to worry about whether the occupational classification will remain the same. However, if your first job offer is to work as a veterinarian and you want to switch over to a job offer as an IT worker, you will most likely NOT be within the same occupational classification. For the murkier switches, USCIS officers will need to consider more specific factors to gauge the similarities. You will have the opportunity to present other evidence to convince the USCIS officer that the jobs are similar.

Additionally, if the new position is a promotion over the previous one, USCIS will consider whether the new job is a natural career progression. For instance, if you are promoted into a managerial or supervisory position, the classification and job description may be significantly different from the original position. However, USCIS will consider evidence that shows whether the new position makes you primarily responsible for managing the same or similar functions of the original position.

If your petition to “port” the green card application from one job offer to another is successful, you can successfully change jobs without worrying about losing your place in line for a green card. This is a huge benefit to both you and the job market, as valuable workers have more mobility.

Contact Us for Skilled Legal Support

If you are an employee hoping to use AC21 to change jobs, or you are an employer hoping to hire someone with a pending employment-based green card application, Yekrangi & Associates is ready to assist.

We have the tools and resources needed to help you find a solution. Don't hesitate to contact us at (949) 478-4963 today.

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