New AC21 memo part 1(Section A &B)

U.S. Department of Homeland SecurityBureau of Citizenship and Immigration ServicesHQBCIS 70/6.2.8 - P425 I Street NWWashington, DC 20536August 4, 2003MEMORANDUM FOR SERVICE CENTER DIRECTORS, BCISREGIONAL DIRECTORS, BCISFROM: William R. Yates /s/ Janis SposatoActing Associate Director for OperationsBureau of Citizenship and Immigration ServicesDepartment of Homeland SecuritySUBJECT: Continuing Validity of Form I-140 Petition in accordance with Section 106(c) ofthe American Competitiveness in the Twenty-First Century Act of 2000 (AC21)(AD03-16)The purpose of this memorandum is to provide field offices with guidance on processingForm I-485, Application to Register Permanent Residence or Adjust Status, when the beneficiaryof an approved Form I-140, Petition for Immigrant Worker, is eligible to change employersunder §106(c) of AC21.On January 29, 2001, the legacy Immigration and Naturalization Service’s (Service)Office of Field Operations issued a memorandum entitled “Interim Guidance for ProcessingH-1B Applications for Admission as Affected by the American Competitiveness in theTwenty-First Century Act of 2002, Public Law 106-313.” On June 19, 2001, the Office ofPrograms issued a follow-up memorandum entitled “Initial Guidance for Processing H-1BPetitions as Affected by the American Competitiveness in the Twenty-First Century Act (PublicLaw 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106-396).” OnFebruary 28, 2003, Immigration Services Division issued a memorandum entitled “Proceduresfor concurrently filed family-based or employment-based Form I-485 when the underlying visapetition is denied.” These memoranda remain in effect. On July 31, 2002, the Service publishedan interim rule allowing, in certain circumstances, the concurrent filing of Form I-140 and FormI-485. Previous Service regulations required an alien worker to first obtain approval of theunderlying Form I-140 before applying for permanent resident status on the Form I-485.Institution of the concurrent filing process, and other issues relating to revocation of approval ofForm I-140 petitions, have resulted in questions on how to process adjustment applications whenthe alien beneficiary claims eligibility benefits under §106(c) of AC21 due to a change in his orher employment.A. Approved Form I-140 Visa Petitions and Form I-485 ApplicationsThe AC21 §106(c) states:A petition under subsection (a)(1)(D) [since re-designated section 204(a)(1)(F) of theAct] for an individual whose application for adjustment of status pursuant to section 245has been filed and remained unadjudicated for 180 days or more shall remain valid withrespect to a new job if the individual changes jobs or employers if the new job is in thesame or a similar occupational classification as the job for which the petition was filed.Accordingly, guidance in the June 19, 2001, memorandum provides that the laborcertification or approval of a Form I-140 employment-based (EB) immigrant petition shallremain valid when an alien changes jobs, if:(a) A Form I-485, Application to Adjust Status, on the basis of the EBimmigrant petition has been filed and remained unadjudicated for 180days or more; and(b) The new job is in the same or similar occupational classification as the jobfor which the certification or approval was initially made.This policy is still in effect and has not changed as a result of implementation of theconcurrent filing process.If the Form I-140 (“immigrant petition”) has been approved and the Form I-485(“adjustment application”) has been filed and remained unadjudicated for 180 days or more (asmeasured from the Form I-485 receipt date), the approved Form I-140 will remain valid even ifthe alien changes jobs or employers as long as the new offer of employment is in the same orsimilar occupation.1 If the Form I-485 has been pending for less than 180 days, then theapproved Form I-140 shall not remain valid with respect to a new offer of employment.B. Provisions in Cases of Revocation of the Approved Form I-1401AC21 also provides that any underlying labor certification also remains valid if theconditions of §106(c) are satisfied.As discussed above, if an alien is the beneficiary of an approved Form I-140 and is alsothe beneficiary of a Form I-485 that has been pending 180 days or longer, then the approvedForm I-140 remains valid with respect to a new offer of employment under the flexibilityprovisions of §106(c) of AC21.Accordingly, if the employer withdraws the approved Form I-140 on or after the date thatthe Form I-485 has been pending 180 days, the approved Form I-140 shall remain valid underthe provisions of §106(c) of AC21. It is expected that the alien will have submitted evidence tothe office having jurisdiction over the pending Form I-485 that the new offer of employment isin the same or similar occupational classification as the offer of employment for which thepetition was filed. Accordingly, if the underlying approved Form I-140 is withdrawn, and thealien has not submitted evidence of a new qualifying offer of employment, the adjudicatingofficer must issue a Notice of Intent to Deny the pending Form I-485. See 8 CFR103.2(b)(16)(i). If the evidence of a new qualifying offer of employment submitted in responseto the Notice of Intent to Deny is timely filed and it appears that the alien has a new offer ofemployment in the same or similar occupation, the BCIS may consider the approved Form I-140to remain valid with respect to the new offer of employment and may continue regularprocessing of the Form I-485. If the applicant responds to the Notice of Intent to Deny, but hasnot established that the new offer of employment is in the same or similar occupation, theadjudicating officer may immediately deny the Form I-485. If the alien does not respond or failsto timely respond to the Notice of Intent to Deny, the adjudicating officer may immediately denythe Form I-485.If approval of the Form I-140 is revoked or the Form I-140 is withdrawn before thealien’s Form I-485 has been pending 180 days, the approved Form I-140 is no longer valid withrespect to a new offer of employment and the Form I-485 may be denied. If at any time theBCIS revokes approval of the Form I-140 based on fraud, the alien will not be eligible for thejob flexibility provisions of §106(c) of AC21 and the adjudicating officer may, in his or herdiscretion, deny the attached Form I-485 immediately. In all cases an offer of employment musthave been bona fide, and the employer must have had the intent, at the time the Form I-140 wasapproved, to employ the beneficiary upon adjustment. It should be noted that there is norequirement in statute or regulations that a beneficiary of a Form I-140 actually be in theunderlying employment until permanent residence is authorized. Therefore, it is possible for analien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employedby the prior petitioning employer or the subsequent employer under section 204(j) of the Act.Questions regarding this memorandum may be directed via e-mail through appropriatechannels to Joe Holliday at Service Center Operations or to Mari Johnson in Program andRegulation Development.


Accordingly, the Adjudicator’s Field Manual (AFM) is revised as follows:Ë 1. Chapter 20.2 of the AFM is revised by adding a new paragraph (c) to read as follows:20.2 Petition Validity.(c) Validity after Revocation or Withdrawal. Pursuant to the provisions of section 106(c)of the American Competitiveness in the Twenty-First Century Act (AC21), Public Law106-313, the approval of a Form I-140 employment-based (EB) immigrant petition shallremain valid when an alien changes jobs, if:$ A Form I-485, Application to Adjust Status, on the basis of the EB immigrantpetition has been filed and remained unadjudicated for 180 days or more; and$ The new job is in the same or similar occupational classification as the job forwhich the certification or approval was initially made.If the Form I-140 has been approved and the Form I-485 has been filed andremained unadjudicated for 180 days or more (as measured from the form I-485 receiptdate), the approved Form I-140 will remain valid even if the alien changes jobs oremployers as long as the new offer of employment is in the same or similar occupation.If the Form I-485 has been pending for less than 180 days, then the approved Form I-140 shall not remain valid with respect to a new offer of employment.Accordingly, if the employer withdraws the approved Form I-140 on or after thedate that the Form I-485 has been pending 180 days, the approved Form I-140 shallremain valid under the provisions of §106(c) of AC21. It is expected that the alien willhave submitted evidence to the office having jurisdiction over the pending Form I-485that the new offer of employment is in the same or similar occupational classification asthe offer of employment for which the petition was filed. Accordingly, if the underlyingapproved Form I-140 is withdrawn, and the alien has not submitted evidence of a newqualifying offer of employment, the adjudicating officer must issue a Notice of Intent toDeny the pending Form I-485. See 8 CFR 103.2(b)(16)(i). If the evidence of a newqualifying offer of employment submitted in response to the Notice of Intent to Deny istimely filed and it appears that the alien has a new offer of employment in the same orsimilar occupation, the BCIS may consider the approved Form I-140 to remain valid withrespect to the new offer of employment and may continue regular processing of theForm I-485. If the applicant responds to the Notice of Intent to Deny, but has notestablished that the new offer of employment is in the same or similar occupation, theadjudicating officer may immediately deny the Form I-485. If the alien does not respondor fails to timely respond to the Notice of Intent to Deny, the adjudicating officer mayimmediately deny the Form I-485.If approval of the Form I-140 is revoked or the Form I-140 is withdrawn beforethe alien’s Form I-485 has been pending 180 days, the approved Form I-140 is nolonger valid with respect to a new offer of employment and the Form I-485 may bedenied. If at any time the BCIS revokes approval of the Form I-140 based on fraud, thealien will not be eligible for the job flexibility provisions of §106(c) of AC21 and theadjudicating officer may, in his or her discretion, deny the attached Form I-485immediately. In all cases an offer of employment must have been bona fide, and theemployer must have had the intent, at the time the Form I-140 was approved, to employthe beneficiary upon adjustment. It should be noted that there is no requirement instatute or regulations that a beneficiary of a Form I-140 actually be in the underlyingemployment until permanent residence is authorized. Therefore, it is possible for analien to qualify for the provisions of §106(c) of AC21 even if he or she has never beenemployed by the prior petitioning employer or the subsequent employer under section204(j) of the Act.

AC 21

Question: My I-485 has been pending more than 180 days and I am about to change the employment. However, due to the cumbersome rules involving interpretation of "jobs of same or similar occupations" and need to have new employer sending AC 21 letter to USCIS, I am scared that the new employer may screw up and I may suffer irreparable damage such as loss of priority date, etc. I wonder whether I can send the AC 21 evidence rather than the employer should do it. What do I have to do?
A: Your understanding is wrong. It is you who will have to collect the required documents from the new employer and submit it to the Service Center where your I-485 is pending. Your new employer is not a party to this immigration proceeding. They are not taking over the I-140 petition nor are they the petitioner in your green card proceeding. In I-485 proceeding, you are the party to the legal proceeding and you will have to prove that you met the legal requirements for AC 21 porting. Your employer is just hiring you as a new employer based on your EAD or H-1B. They are not involved in your green card proceedings. Often, there is some misunderstanding on the part of your employer, particularly your employer lawyers, as though that the new employer must represent you before the USCIS for your pending I-485 application. That is absolutely false. They are not substituting approved I-140 petition, nor are they petitioner of any I-140 petition. They happened to be a new employer and are asked by you to write a letter on your behalf attesting to the facts, terms and conditions of your employment. Nothing else. People should watch out aginst such abuse by the new employers and their lawyers.