By: Attorneys Robert L. Reeves and Elsie Hui Arias
The Department of Homeland Security — U.S. Citizenship and Immigration Services (USCIS) recently released an interoffice memorandum which clarifies how the American Competitiveness in the 21st Century Act (“AC21”) applies to H-1B visas and immigrant workers moving (or “porting”) to a new employer during the adjustment of status process. Due to the length of the memorandum, this article will only summarize the effect of AC21 on immigrant workers changing employers in today’s column, and discuss the memo’s effect on H-1B visas next week.
As noted in previously in this column, immigrants obtaining permanent residency through an employer must undergo a three-step process: labor certification, immigrant visa petition (“I-140 visa”), and adjustment of status. Physical therapists and registered nurses are exempt from the labor certification process because they are “Schedule A” occupations. Under previous USCIS memorandum, immigrant workers could move to a new employer under AC21 only if their immigrant visas were already approved, and their applications for adjustment of status had been pending for at least 180 days. The new USCIS memo relaxes the requirements for immigrant workers to change employers without adversely affecting their adjustment of status applications. The following is a brief summary of key points in the memo:
· The memo reaffirms that an immigrant worker can only move to a new employer where the new position “is the same or similar occupational classification” as the original job offer.
· An immigrant worker may move to a new employer where the immigrant visa and adjustment of status applications have been pending for more than 180 days, even if immigrant visa has not been approved, where the petition is otherwise approvable. If the USCIS cannot determine if the immigrant visa petition is approvable based on the initial filing, the USCIS will issue a request for evidence (“RFE”) to which the original employer must respond satisfactorily. If the only issue in the immigrant visa petition is the employer’s “ability to pay” the proffered wage, the immigrant visa should still be approved.
· An immigrant worker who leaves his petitioning employer before the adjustment application has been pending for 180 days will not be automatically precluded from the benefits of AC21 portability. However, in this situation, the USCIS will request evidence that the original job offer and intent to be employed by the petitioner on a permanent basis were bona fide.
· Multinational managers or executives (aliens in L-1A visa status) with a pending immigrant visa petition and adjustment of status application may move to a different employer under AC21 where the new job is the “same or similar” (i.e., manager or executive), even if the successor employer is a company unrelated to the original petitioner.
· The new employer that the immigrant worker moves to does not need to provide a new labor certification or submit proof of “ability to pay” the wage offered by the original petitioner. In fact, the new employer does not need to offer the same wage to the immigrant worker (although the USCIS will scrutinize wide discrepancies in wage offers). The relevant inquiry is whether the new position is in the “same or similar” occupational classification as the original job offer.
· An immigrant worker can change to self-employment under AC21 as along as the new employment is the “same or similar” to the original job offer. The USCIS will request verification that the new employer and job offer are legitimate, and that the original immigrant visa petition was bona fide.
· An immigrant worker may not move to a new employer under AC21 if the immigrant visa petition was withdrawn before his adjustment of status application had been pending for 180 days. An immigrant worker also cannot move to a new employer if the immigrant visa petition is denied or revoked at any time (except when it is revoked based on a withdrawal that was submitted after the adjustment has been pending for at least 180 days).
· For the immigrant worker to change employers, there must be an actual job offer with a legitimate employer. The immigrant worker cannot still be looking for “same or similar” employment at the time the adjustment application is being adjudicated.
The USCIS advises that the memo provides officers with interim guidance, and that it will only be in effect until regulations for AC21 are published as a final rule, which could reflect a more restrictive interpretation. This current memorandum is very helpful for immigrant workers seeking to change employers while preserving their adjustment of status applications.
Obtaining employment-based permanent residency has become increasingly more difficult and complex. Employers or individuals seeking assistance with such matters should consult with knowledgeable and experienced immigration attorneys.