AC-21 I-140/I-485 portability in the context of recession in US market

In March this year, the US employment figures revealed that a staggering 63,000 jobs have disappeared during February alone. If this is the indication of things to come, non-immigrant employees who are in the process of getting their citizenship are going to feel the pinch in a tremendous way. It will also most likely see a definite increase in aliens with pending I-140s and I-485s changing employers using the portability rules pursuant to the American Competitiveness in the Twenty-First Century Act of 2000 (AC-21) to retain steady employment.

That brings us to the two questions. Is the current AC-21 portability rule geared up for that kind of pressure and/or what changes are necessary to maintain the integrity of the program in the context of the current employment scenario in US? Currently the USCIS is relying on the Aytes AC-21 Memorandum of 2005 for guidance, which is not a law but is listed under the Significant Guidance list in the agency websites. Consequently, it allows the people availing the AC-21 portability rules to put its guidance’s and the adjudicators under the microscope.

One option, therefore, can be to update the interpretations of the upcoming AC-21 Act to suit the current context. However, the reality is that the Act is unlikely to be enacted until after the US presidential elections are over, which means another fiscal year at least. It is more likely that the agency will shift to a more offensive approach towards tackling the mounting pressure, specifically through increased audits and reinforcement of compliance by introducing severe penalties.

Of course, these are only conjectures as USCIS has not given any indications of taking either step yet. Having said that, USCIS is not sitting idly by either and has issued additional guidance’s to the current memo, indicating the agency is already conscious of the current context.

Update on AC-21 Memorandum

The new update to the Aytes memorandum issued on 30th March 2008, has additional guidance on portability issues detailed below -

1.      H-1B Extensions Beyond Sixth-Year

This particular guidance update was expected as significant changes have been made to the Labor Certification program recently – specifically the termination of LCA substitution and establishment of a 180-day validity period on approved LCs. Additionally, USCIS has also resumed its premium processing of I-140 petitions for select beneficiaries whose H-1B are nearing expiration.

Under the new guidance, USCIS will be allowed to grant extensions in one-year increments to H1B visa holders with whose LCA or I-140 have been filed at least one year ago, unless (1) the LCA is denied, (2) previously approved LCA is revoked, (3) I-140 petition is denied, (4) I-485 is denied or granted or if (5) the LCA has expired by the time application for extension is made.

USCIS will also be allowed to grant extensions in three year increments to beneficiaries with approved I-140 petitions but with no visa number availability, until such time as the foreign national’s application for adjustment of status has been processed and a decision has been made. The new guidance also extends this protection to beneficiaries whose immigrant preference category is totally “unavailable.”

Additionally, to determine the visa number availability, USCIS has been directed to follow the Visa Bulletin that was in effect at the time the Form I-129 was filed, rather than the current Bulletin.

2.      I-140 Portability Pursuant to AC-21 Act

The updated guidance is not really good news for beneficiaries planning to port with pending I-140 or I-485. Currently, the AC-21 rules provide that I-140 portability is allowed for beneficiaries whose I-485s are pending for 180 days or more, provided the beneficiary’s new position falls under the same occupational classification as the original position for which the petition was filed.

However, under the new guidance, I-140 portability for beneficiaries whose I-485s are pending for 180 days or more will be allowed only if the petition is approved. Consequently, as I-140 applicants are now facing a huge backlog that is unlikely to clear before 2011, they can forget about porting, once the 180 days are over.

3.      Portability Issues for Beneficiaries who Report LCA Violations

This guidance is basically an umbrella of protection extended to employees who are forced to change employment on the face of retaliatory action by previous employer, for reporting any violation of LCA conditions by the employer. Such an individual will be granted additional time to find new employment as his actions were initiated under “extraordinary circumstance”.

For those who have been waiting endlessly for permanent residency, these updates are a mixed bag. The new guidance for beyond 6th year extensions are a welcome change for those who are facing the “Unavailability” of visa numbers, specially the EB-3 Category which, the Visa Bulletin reports, will remain unavailable till October 1st 2008. However, for those applicants who’s LCAs are nearing their expiration dates, availing the AC-21 portability will not be an option once the 180-day period runs off.


USCIS seems to be addressing the issue and making changes to adapt to the new employment situation and the expected increase in demand for change of employment by non-immigrant aliens with pending Adjustment of Status applications. Still there is room for improvement and we would advise those who are considering using the AC-21 Portability options to thoroughly weigh their options and scrutinize the Aytes memo with its present updates, before committing to any such step.