Generally, a new job should be in the same job classification as the job for which the approved immigrant petition was filed.
Positions that are claiming identical SOC codes are generally considered as qualifying for AC21 portability. The same is true for positions within the same SOC broad occupational code i. AC21 permits in fact, its goal is to promote lateral moves, career progression, and self-employment.
Career progression to jobs which may be in different SOC codes can be acceptable for AC21 portability. The AC21 same or similar requirement can also be met by positions in different SOC codes, even without career progression. If the evidence shows that the jobs share essential qualities or resemble each other, there is potential AC21 portability. This allows for variations in SOC codes that reflect different industries, but where the jobs are quite similar in duties, skills, requirements, and other factors.
Example: the initial I sponsored position is for , Computer Systems Analyst but the new job is for , Information Technology Project Managers. In a teleconference on this subject years back, the Nebraska Service Center NSC has provided some unofficial but helpful guidance on their reasoning and practice when adjudicating ACrelated cases. A salary discrepancy between the sponsored job and the AC21 job is also reviewed by USCIS — but the focus is to determine whether a substantial salary increase is cause by the passage of time, natural career growth or moving to a higher cost-of-living area all of which are okay.
In cases where there is substantial salary difference, an AC21 package should address the factors contributing to this salary increase. A separate but very important consideration is whether to start working for the new employer using H-1B transfer if the applicant is on H-1B or using the I EAD. The analysis with respect to AC21 portability discussed herein does not necessarily depend on whether a new job is taken pursuant to EAD based on the pending I application or pursuant to an H-1B transfer.
There are many case-specific factors which may affect the decision whether to work under EAD or H-1B — however, if all things are equal, we normally recommend that a new job be taken pursuant to an H-1B transfer.
As noted, we generally recommend that foreign nationals who are I applicants and may otherwise be able to work using EAD continue working and staying on the U. This way, in the event however unlikely it may be of an I denial, the foreign national would likely be able to continue staying and working in the U. On the other hand, if one is employed with an EAD and the I is denied, then this person and family members may need to leave the U.
Another common question we receive from current and prospective clients who are expecting visa number and have used AC21 to switch employers and are no longer with the original employer is whether they can travel abroad using advance parole AP document and whether the AP document is specific to an employer.
First, it is worth reiterating the point made in the previous paragraph that it is better to continue working and traveling using H-1B or L-1, as applicable while waiting for I approval and after changing employers under AC After completing an AC21 porting and switch of employers, an I applicant can freely continue his or her green card application and avail him- or herself of all of the benefits of pending green card adjustment of status application — including advance parole travel and EAD.
Thus, employees who have properly pending adjustment of status and unexpired advance parole document even if issued while working for the now-former employer can travel abroad and re-enter with such advance parole document assuming there are no other significant inadmissibility issues.
We have been very active in helping eligible I applicants port their eligible pending I applications to a new employer and advance their careers in the process. Here are some common ways our office can help. We offer a variety of phone-based consultations to analyze a possible job change.
Affidavit of Support, Form I, is legally required for many family-based and some employment-based immigrants to show they will have adequate means of support after immigration to the United States. Every petitioner for his or See more Alexandria, VA Sitemap Privacy Policy View full version.
Law Firm Information Olivet Dr. Thus, employees who have properly pending adjustment of status and unexpired advance parole document from a former employer can travel abroad and re-enter with such advance parole document with no issues. Many clients are nervous to answer the question whether they are still employed by the sponsoring employer when, in fact, they are not. However, the AC21 process is intended to address this kind of situation and we urge foreign nationals, who are asked this question upon their return to the country, to answer truthfully and explain to the border agent that they have done an AC21 transfer.
Some immigration attorneys advise against filing anything in connection with an AC21 job transfer. The added benefit of this is that the employee has a letter documenting the AC21 transfer and which letter briefly explains the law and the circumstances of the AC21 transfer. Having such letter and presenting it to the border agent upon re-entry is a nice way to deflect a skeptical border agent of the propriety of the AC21 job transfer.
As many I applicants are now becoming or will soon be eligible for AC21 porting to a new employer, we hope that many would first consider the pros and cons of AC21, as discussed in this article, before jumping ship to a new employer. There are significant issues and questions to be addressed before AC21 eligibility is confirmed — and considering that many, especially in EB-2 China and India, may have a long wait before their priority date becomes current, a decision to invoke AC21 is very important.
Our office is happy and available to assist with AC21 case analysis and with invoking AC Please do not hesitate to contact us. Having your own attorney receive and address such correspondence as early as possible is important. Travel Abroad Another common two-part question we receive from current and prospective clients who are expecting visa number and have used AC21 to switch employers and are no longer with the original employer is 1 whether they can travel abroad using advance parole AP document issued when working with the former employer and 2 what should they respond, upon return, when questioned by a border agent about their employment situation.
Conclusion As many I applicants are now becoming or will soon be eligible for AC21 porting to a new employer, we hope that many would first consider the pros and cons of AC21, as discussed in this article, before jumping ship to a new employer.
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