How to Port and Retain a Pending I-485 to a New Employer Under AC21 – I-485 Supplement J

With many applicants filing (or having filed) adjustment of status (I-485) applications, especially in the EB-2 and EB-3 India and China categories, and due to the fact that there are many I-485 applicants who are hoping to switch jobs, our office has handled numerous AC21 green card porting cases.   Many I-485 filers have or will soon be eligible for porting their I-485 green card process to a new employer because their employment-based I-485 application have been (or soon will be) pending for more than 180 days.   As a result, we seek to remind eligible applicants that their I-485 may be portable to a new employer (or to self-employment), for a same or similar job, and to provide some guidance and clarifications on the main rules and options for porting one’s I-485 green card application to a new employer under AC21.

AC21 Background

The American Competitiveness in the Twenty-First Century Act of October 2000 (AC21) provides in section 106(c) that an adjustment of status applicant who has an I-485 application pending for 180 days or longer is able to continue with the green card process even after s/he has changed employers, as long as the new job is in the same or a similar job classification.

Specifically, AC21 permits an individual to transfer, or “port”, his or her green card process to a different employer if (1) the new job is the “same or similar”, (2) Form I-140 has been approved or is approvable when filed concurrently with Form I-485, and (3) Form I-485 has been pending for at least 180 days.

How Does the AC21/I-485 Supplement J Porting Process Work?

In order to invoke AC21 and “port” an eligible pending I-485 application to a new employer, the individual I-485 primary applicant would file Form I-485 Supplement J with the appropriate USCIS service center.   The purpose of the I-485 Supplement J form is to obtain a confirmation by the employer and the employee that there is an available bona fide job offer.

What is Form I-485 Supplement J?

Prior to the introduction of the I-485 Supplement J this, USCIS used to accept an employment verification letter by the intending employer as a confirmation of the bona fide job offer.   In an effort to standardize the process and the information submitted, USCIS introduced Form I-485 Supplement J and since then the Supplement J form has been a requirement for:  (a) all new I-485 filings where it is used to confirm that the job offered in the underlying I-140 immigrant petition (pending or approved) is still valid and offered to the beneficiary or (2) all requests for AC21 portability of pending I-485 applications where the beneficiary aims to “transfer” their pending I-485 to a new employer or job which is “same or similar”.   Please see our I-485 Supplement J article for more details on this form.

Whose Responsibility is to File I-485 Supplement J?

While the I-485 Supplement J form is signed by both the employer and the employee, it is technically the individual employee’s responsibility because it is filed as part of the individual employee’s I-485 adjustment of status application.

What Happens After Filing I-485 Supplement J?

Once the fully-signed Supplement J form is filed with USCIS, normally a I-485 Supplement J receipt notice would be issued as USCIS treats it as an additional request.    The Supplement J porting request is subject to substantive review and approval; most of the time the Supplement J AC21 porting request is approved together with the underlying I-485 application.

Should I Invoke AC21 and Notify USCIS?

AC21 happens automatically.  In other words, by meeting the AC21 requirements (e.g. switching to a different employer and by working in a “same or similar job”) the individual has  successfully taken advantage of green card portability provisions of AC21.  However, USCIS does not know that the individual has changed job.  As a result, it is best to notify USCIS of the job change and to inform USCIS that AC21’s requirements have been met. Filing an AC21 notification with USCIS helps avoid problems in the future and, as of November 2017,  it also creates an “affected party” right of notification.

If a USCIS adjudicator has no knowledge of an individual using AC21 portability, and there is something “wrong” with the Form I-140 (revoked, for example), the adjudicator is required to issue a Notice of Intent to Deny (NOID) the pending I-485.  There have been cases when applicants responded to NOID with necessary documents to prove their eligibility for AC21, and their cases were still denied.  Although it is not difficult to reopen such a case with further explanation, it can be a real hassle and waste of time.

Another reason for invoking AC21 proactively is to preempt an RFE in cases where there is also a change of address.  While not officially confirmed by USCIS, in some cases when there is change of address, in addition to change of employer, USCIS gets a notification of this address change (due to the requirement that a Form AR-11 must be filed with USCIS).    In some cases, USCIS has been issuing RFEs on the pending I-485 applications seeking information relating to AC21.

In addition to preempting an RFE, as discussed above, another reason for filing AC21 notice is the opportunity to change the attorney of record on the I-485 case.  Often the I-485 is filed by an attorney of the former employer and after the employee departs, the former employer’s attorney may not be motivated to share very quickly with the employee any correspondence from USCIS, including time-sensitive RFE/NOIDs.

Another reason to proactively invoke AC21 and inform USCIS of the new employer sponsor is the string of 2015-2016 Appeals Court cases which have established a notification right of new AC21 sponsor employers in connection with I-140 revocation of an earlier petition by a former employer.  See details.   Similarly, a November 2017 Policy Memorandum entitles a properly-ported AC21 beneficiary to certain rights in the event of I-140 revocation proceeding.  See details.

If I Decide to File AC21 Notification, When Is the Best Time To Do So?

Generally, there are two opportunities to file AC21 notification.  One is shortly after the individual starts his or her employment with the new employer.  The second one is if there is an RFE or NOID issued by USCIS.   Recognizing that there may not be an RFE or NOID issued at all, the question becomes whether it is worth spending the time (and money) to prepare and file AC21 shortly after starting the new job.

From our practice, there are certain distinct advantages to filing AC21 upon starting a new job, as opposed to doing so after receipt of a RFE/NOID:

• You will control the timing of preparing and filing the AC21 documents — you will have time and be able to carefully prepare the documents required by the employee and your employer will have time to prepare a good employment verification letter.  On the other hand, if you wait for RFE/NOID, you will most likely be under a 30-day filing window to prepare and file the RFE/NOID response and rushing the preparation and filing of the documents will affect their quality and ultimately your case will not be presented as well as it could have been.
• Your employee/employer relationship is likely to be very good – your employer is not likely to object to providing an employment verification letter soon after you start work.  On the other hand, if you wait for an RFE/NOID and the employer has grown unhappy, there is a strain on the employer/employee relationship or if the employer’s business is not doing well, it may be more difficult to ask for and obtain an employment verification letter.
• You can change the attorney of record on your I-485 — if your former employer’s attorney is the attorney on record for the I-485, it is good idea to change the attorney of record as early as possible.  As indicated above, your former employer’s attorney may not be motivated or willing to share with you promptly time-sensitive correspondence from USCIS, including RFE/NOIDs.  Having your own attorney receive and address such correspondence as early as possible is important.

How “Similar” Should the New Job Be?

Another critical question in connection with AC21 is whether a new proposed job position is “same or similar” for purposes of complying with AC21 and meeting its requirements.

Generally, a new job should be in the same job classification as the job for which the approved immigrant petition was filed.  For example, an adjustment applicant working as Computer Analyst, where the PERM/I-140 were filed for Computer Systems Analysts (SOC code 15-1211) classification should be able to switch to a new job which fell under the same classification – 15-1211 (but watch for revisions and SOC code changes over the years).

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.e. first five digits match, only the last digit is different).

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-485 sponsored position is for 15-1121, Computer Systems Analyst but the new job is for 15-1199, Information Technology Project Managers.  In many circumstances this kind of career progression would meet the “same or similar” requirements.

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 AC21-related cases.   NSC was asked to provide some guidance as to their criteria in adjudicating the “same or similar” job standard.  In response, NSC confirmed that the “same or similar” has not been a significant issue because NSC has been applying a “common sense” approach – NSC has confirmed that most petitions invoking AC21 portability based on similar occupations are indeed usually similar, i.e. accountant doing another accounting position, IT consultant working in the IT field.    On the other hand, IT worker making “slurpees at the 7-Eleven” would not be considered to qualify under AC21.

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).   On the other hand, if a substantial salary discrepancy cannot be explained on some of these factors, it may suggest that the AC21 job is not “same or similar”.    In cases where there is substantial salary difference, an AC21 package should address the factors contributing to this salary increase.

Should I Work For the New Employer Using H-1B Transfer or EAD?

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-485 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-485 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-485 applicants (and may otherwise be able to work using EAD) continue working and staying on the U.S. pursuant to H-1B status until their I-485 green card application is approved.   This way, in the event (however unlikely it may be) of an I-485 denial, the foreign national would likely be able to continue staying and working in the U.S. while the I-485 issues are addressed.   On the other hand, if one is employed with an EAD and the I-485 is denied, then this person (and family members) may need to leave the U.S. immediately, obtain H-1B extension (if possible) and H-1B stamp  before being able to return to the U.S.  — a situation which is certainly undesirable to employer and employee.

Can I Travel Abroad After Porting to a New Employer?

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-485 approval and after changing employers under AC21.

After completing an AC21 porting and switch of employers, an I-485 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).

Can I Port Pending I-485 to My Own Company or via Self-Employment?

Yes, the AC21 porting provisions allow doing so to self-employment or to an employer owned entirely or partially by the I-485 applicant.    All other AC21 porting requirement are in place, including “same or similar” job and the I-485 applicant must be primarily engaged in this ported substantive position (and not generally running a business).  The employer (or the terms of self-employment) must also be credible and legitimate and the government may expect to be provided evidence of operations, business plans, products/customers, etc.

Our office has been able to assist many I-485 applicants in porting to their own company or to self-employment and our experience has been that a well-presented porting application is treated no differently by USCIS than a “normal” AC21 porting to a different employer in which the applicant does not have ownership interest.

How Can Our Office Help You?

We have been very active in helping eligible I-485 applicants port their eligible pending I-485 applications to a new employer and advance their careers in the process.    Here are some common ways our office can help.

Same or Similar Analysis/Phone Consultation.    We offer a variety of phone-based consultations to analyze a possible job change.   We can review and discuss the eligibility factors and analyze whether the new job is “same or similar” to the sponsored position.

I-485 Supplement J/AC21 Porting Package.     We also offer a Form I-485 Supplement J/AC21 porting package where, for a flat attorney fee, we will prepare and file all of the Supplement J/AC21 documents with USCIS for the primary applicant (and any dependents).   It includes becoming a G-28 attorney of record for the I-485 applications and, for no additional fee, includes responding to RFE relating to this AC21 porting in the future. There are no government fees associated with the I-485 Supplement J/AC21 porting.   Please contact us if we can help.

RFE Response/I-485 Supplement J Porting Package.    For applicants who are facing request for evidence (RFE) which includes, among other items, a request for Supplement J/AC21 porting information, we also offer an RFE/AC21 package which includes preparing and filing all of the RFE-required and AC21 documents with USCIS for the primary I-485 applicant (and any dependents) and becoming a G-28 attorney of record all applicants.  It includes responding to RFE relating to this AC21 porting in the future. There are no government fees associated with the I-485 Supplement J/AC21 porting.   Please contact us or submit an RFE response attorney fee quote request if we can help.

Webinar for Applicants with Pending I-485s

For those applicants who have a pending I-485 (and are facing a long wait for a current priority date and approval),  we offer a webinar discussing the many aspects to successfully navigating a pending I-485 application process, including travel abroad, AC21 porting to a new employer, EAD/AP extensions and many others.    This is especially true when I-485 applications may be in process for a number of years due to visa number retrogression.   We offer a recording of our live webinar session where attorneys of our firm discuss and analyze a variety of aspects of the pending I-485 process.

Watch January 11, 2024 Recording: Webinar on Pending I-485s

Conclusion

As many I-485 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 and EB-3 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 AC21.   Please do not hesitate to contact us or consider our consultation options.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.