AC-21

Leading immigration attorney Carl Shusterman recently hosted a chat on our site on:

The 180-day Portability Rule - Clearing Up Misconceptions

Jennifer Wipf: Welcome everyone. I have turned moderation on and am calling Mr. Shusterman now. Please remember that these answers are of a general nature and cannot be construed as legal advice.

Mr. Shusterman is here everyone.

Carl Shusterman: Hello and welcome to our first free online immigration chat of the new year. Judging by the number of people in the chat room the 180-day portability rule seems to be a hot subject.

Before we start, I want to mention that we are thinking about having a chat in February regarding the H-1B portability rule. You will be able to get more information about this chat at http://immigration.about.com and at http://shusterman.com. On all of our chats, we do our best to stick to the topic. Today we will be talking about the 180-day portability rule, and in February, we will be talking about the H-1B portability rule.

Jennifer Wipf: We have many many participants and questions tonight, but luckily there seem to be a lot of duplicate questions and about ten central issues here.

Question #1: My company applied for my I-485 in August 2001 in the Texas service center. When is it safe for me to switch companies?
 
Carl Shusterman: The 180-day portability rule allows you to switch jobs or employers at any time. This is after the form I-485 is submitted to the INS - anytime after that, as long as the INS does not decide your application for at least 180 days after the filing date. Since there is no way for you to know whether the INS will decide your application during the first 180 days, which in your case should be sometime in February 2002, if you want to be absolutely safe, wait until it has been 180 days since the I-485 was submitted before you change jobs. However, it's been my experience in submitting I-485s for clients across the United States, that rarely does the INS decide an application during the first 180 days. The bottom line is that if you are willing to take a little bit of risk, you can change jobs immediately.

Question #2: Hi. I've been laid off before 180 days after I applied for I-485. I already have an Employment Authorization Document. Can I use it to get another job, and the new employer needs to sponsor me again for my I-485? Also do I need to start from scratch another I-485 or can I can continue the process? Thanks.

Carl Shusterman: There is no need for your new employer to file a second I-485 on your behalf. As long as your job is in the same or similar occupation you can adjust status using your previously filed I-485. You can continue employment using your Employment Authorization Document (EAD).

Question #3: How can I ensure that the new job taken is in the same or similar position as per AC-21 law? INS says they may utilize O-Net directory but that seems ambiguous as all job titles are not clearly defined. Please clear this issue.

Carl Shusterman: The INS issued a policy memorandum regarding AC-21 on June 19, 2001. You are correct in that with regard to whether a job is the same or similar occupation, the INS on page 8 of the memorandum states as follows:

"To determine whether a new job is in the same or similar occupational classification as the original job for which the certification or approval was initially made, the adjudicating officer may consult the Department of Labor's Dictionary of Occupation Titles or its online O'NET Classification System for similar publications."

We link to the INS memorandum at http://shusterman.com/dec01.html#7.

We link to the Dictionary of Occupation Titles and O-NET at: http://shusterman.com/toc-dol.html under "Occupational Information." Not until the INS issues regulations will we know how close your old and new jobs must be related in order to be classified as "similar." Also, not until INS regulations are issued will we know what INS meant in their memorandum when they refer to "similar publications." However, it is probably a safe bet that if your job change was from programmer/analyst to senior programmer/analyst, the two jobs are similar. Whether a change from programmer/analyst to vice president of marketing is similar is a little more of a stretch.

Question #4: Could a former employer, who initially sponsored my green card, revoke its sponsorship and jeopardize the green card process for the person who used portability to change his/her job?

Carl Shusterman: The way I read the law, the petition would remain valid as long as INS fails to adjudicate the I-485 within 180 days whether or not the first employer attempts to revoke the petition. Again, however, we will see whether the INS agrees with this interpretation only after it has published the regulations.

Question #5: Is our Adjustment of Status compromised by my termination? (I expect to be able to obtain a similar position). 2. Can we both work in the US with the EAD cards we now have. 3. What is the time frame to look for a new employer? And what happens if we move to another state?

Carl Shusterman: Termination is probably the clearest case where the 180-day portability rule controls. Although the statute does not specifically provide, case law imposes an "intent" requirement on most applicants for adjustment of status under the employment-based categories. If you are terminated from your job after filing Form I-485, for any reason, it is clear that the change of jobs was beyond your control and not because of a lack of intent on your part to work for the sponsoring employer indefinitely. Nowhere in the law does the location of your new job become relevant.

Jennifer Wipf: Please hold new questions for now. We have many duplicates and are working hard to help everyone.

Question #6: Should we count 180 days from notice date or received date?

Carl Shusterman: The law is not specific as to when the 180 day period begins.

Jennifer Wipf: You knew that was coming. :/

Carl Shusterman: The law says that the application for Adjustment of Status must have been "filed" and remained unadjudicated for 180 days or more. The question is what does the word "filed" mean? Although I would argue that the filing date is the day that your application was mailed to the INS, the INS may opt to use the receipt date when regulations are issued. My experience working for the INS in the late 1970's and early 1980's has convinced me that there are certain people in INS Headquarters in Washington D.C. who will always adopt the interpretation which is most antithetic to the interests of the immigrant. Unfortunately, some of these people write the INS regulations.

Question #7: After applying for I-485, when can I start my own business? Does it have to be in similar occupation as the original job?

Carl Shusterman: The 180-day portability rule applies to persons who work for their own businesses as well as to those who work for others. However, the requirements remain the same. At the time that the I-485 is submitted, it must be your intent to work for the petitioning employer indefinitely. If INS fails to decide your application within 180 days after filing, you will not be penalized if you have changed jobs and employers as long as the new job is in the same or a similar occupational classification. This is true whether the change of jobs/employers occurs before or after the 180 day limitation.

Question #8: In the present market condition, will it be fine to join a new job before 180 days or after 180 days with a salary less than what is mentioned in the Labor certification?

Carl Shusterman: The law does not mention salary or location as relevant factors. Therefore, if your original job was in the Silicon Valley and your salary was over $100,000 a year, it should not matter that your new job is 1000 miles away and pays $60,000 per year as long as your occupation remains the same or is similar. We will see what the INS regulations have to say about location and salary, if anything.

Question #9: Good evening Attorney Shusterman, my company's lawyer told me that they will not process my EAD because I still have enough time in my H-1B.  If they lay me off before 180 days, can I still process my EAD on my own. Thanks!

Carl Shusterman: You can apply for an EAD on your own without using an attorney. It may be wise for you to apply for an EAD immediately. This is because the processing time for EAD applications using Form I-765 varies from service center to service center. For the latest INS processing times, see: http://shusterman.com/toc-sc.html. In order to download form I-765 for free, see: http://shusterman.com/immforms.html.

Question #10: Is it legal for my company's lawyer to hold the receipt notice for my I-485 application because they know that I can file my own EAD once I have that right?

Carl Shusterman: The I-485 is filed by you, rather than by your employer. Therefore in my opinion, you have a right to demand a copy of your application and the INS receipt notice.

Question #11: With EAD can we do any petty jobs in case we are on bench?

Carl Shusterman: Yes, an EAD permits you to work for any employer doing any type of job. However, unless your new job is both full-time and in the same or similar occupation as the job for which you were petitioned, the INS will not allow you to adjust status on the basis of your original petition.

Question #12: What if my employer wants to switch me to part-time?

Carl Shusterman: Unless your job offer is for full-time work, the INS may deny your application for adjustment of status. As a practical matter, the job offer is perspective only. But if you are working in the United States on a part-time basis, try convincing a very skeptical INS examiner that your job is suddenly going to become full-time as soon as the agency agrees to
adjust your status. ;)

Question #13: If being laid off within 180 days from RD and with EAD what are the steps to be followed to save AOS (Like informing lawyer change, any letter from previous employer required etcetera).

Carl Shusterman: The INS memo of June 19, 2001, referred to earlier in this chat, provides as follows:

"In instances where the applicant no longer intends to be employed by the employer who sponsored him/her on the I-140, the Service should request a letter of employment from the new employer.  The letter from the new employer verifying that the job offer exists should contain the new job title, job deion, and salary. This information is necessary to determine whether the new job is in the same or similar occupation and to determine whether the alien is admissible under the public charge ground of inadmissibility at INA Section 212 (a)(4)."

Jennifer Wipf: Oops, we are out of time. Mr. Shusterman needs to leave now. Many of the questions were duplicates, so I hope most of you got your answers. A few were actually H-1B portability questions which we will cover in our next chat. There will also be a tran of this chat online within a week or two.

Carl Shusterman: Thank you for your excellent questions this evening. Our next chat will be about H-1B portability. Please join us online on Monday, February the 18th at 8pm Eastern, 5pm Pacific time. Good night all.

Jennifer Wipf: Good night Carl. Everyone: I am turning off moderation so you may chat amongst yourselves.

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