American Competitiveness in the Twenty-First Century Act of 2000 (AC21) Rules Regarding Portability

The American Competitiveness in the 21^st Century Act (AC21)

The American Competitiveness in the 21st Century Act (AC21) is a law that was passed by the United States in October 2000. This law addresses issues related to immigration to the United States. This law complements to the American Competitiveness and Workforce Improvement Act that were passed in 1998. The purpose of AC21 was to change rules related to portability and caps for the H-1B visa in order to increase the effective number of visas available and to make it easier for employees on those visas to change jobs. Although the language of the Act references the Immigration and Naturalization Service (INS), the functions of the INS referenced in AC21 would be handled by United States Citizenship and Immigration Services (USCIS).

 

Portability Rule

For aliens who are applicants for employer-sponsored I-140s (e.g. EB-1(b) (Outstanding Researcher or Professor), EB-1(c), EB-2 (except NIW) and all EB-3) current immigration law allows the alien to change employers 180 days after the date of filing Form I-485, adjustment of status. (67 FR 49561) This has been called the Portability Rule.

The Portability Rule applies to H-1B nonimmigrant petitions as well as employment-based immigrant petitions.  H-1B portability allows specific current H-1B workers to begin work for a new employer upon filing their petition, rather than waiting for the petition’s approval. Additionally, portability allows current H-1B workers to extend their H-1B status beyond six years if the I-140 or I-485 is pending and one started the employment-based immigration petitions a year prior. Furthermore, it allows the USCIS to approve the I-485 for a new employer if the job is similar and the I-485 has been pending for at least 180 days.

 

Recent Changes and Finalized Rules

On November 18, 2016, USCIS published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs, which took effect on January 17, 2017. USCIS also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents.

 

With respect to portability, DHS amended its regulations to:

• Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers by increasing the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers, and pursuing other employment opportunities.
• Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.
• Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:
• They are the principal beneficiaries of an approved Form I-140 petition;
• An immigrant visa is not authorized for issuance for their priority date; AND
• They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion.

Such employment authorization may only be renewed in limited circumstances and only in one year increments.

• Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
• Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.

 

Extension of H-1B Status

AC21 gives extensions of H-1B status in one-year increments to H-1B foreign nationals who have an employment-based immigrant visa petition or application for adjustment of status pending if it has been more than 365 days since the visa petition or the labor certification application has been filed.  The limitation regarding the duration of authorized stay will not apply to any foreign national previously issued a visa or otherwise provided nonimmigrant status under H-1B on whose behalf a petition to accord the foreign national immigrant status, or an application for adjustment of status has been filed, if 365 days or more have elapsed since

• The filing of a labor certification application on the alien’s behalf (if such certification is required for the alien to obtain status); OR
• The filing of the petition.

Additionally, an alien who qualifies for an exemption stated above can have their stay extended in one-year increments until a final decision is made on the alien’s lawful permanent residence. To benefit from this provision, it is merely required that 365 days have passed since the filing of the labor certification or immigrant visa petition; it is not necessary for the adjustment application, labor certification, or visa petition to have been pending for a year.

 

H1B Extensions Beyond the Six (6) Year Limit

An alien may remain in the United States under H-1B status for up to six years. However, once the maximum of six years is reached, the H-1B alien must leave the U.S. for at least one year to obtain a new H-1B status.  Despite this six-year maximum, some H-1Bs are eligible to be extended beyond the maximum.

There are two situations in which an H-1B status holder can extend their visa status beyond the six-year limit:

• If the H-1B holder filed either a Labor Certification (LC) application or an I-140 petition 365 days before reaching the six-year limitation AND the LC or I-140 has not been denied, the H-1B visa holder may extend their status on an annual basis beyond the six-year limitation.  Under this scenario, there is no limit to the total years in H-1B extension as long as the immigration process is still ongoing.
• If an H-1B visa holder has an approved I-140 petition AND an immigrant visa number is unavailable because of ineligibility to file I-485 as a result of visa number caps, the H-1B visa holder may extend their status in three-year intervals beyond the six-year limit. There is no 365-day requirement for this scenario.

 

H-1B Not Limited to the Permanent Residency Petitioner Employer

For an H-1B extension under the above two circumstances, an H-1B visa holder may extend their H-1B with any sponsoring H-1B employer. The H-1B holder is not limited to extending their H-1B status with the employer sponsoring the immigration petition as long as the H-1B Holder is in PERM path to green card and the PERM sponsoring employer is willing to continue to sponsor the immigration petition. However, the H-1B holder will need to come back to work for the PERM sponsoring employer either during I-485 or after the green card is approved.

Individuals must depart from the U.S. for at least one year before qualifying again for H-1B status with another six-year period.  After the individual departs from the US and remains abroad for at least one year, the individual must undergo the same process required for the first H-1B visa to obtain that status again.  This includes securing an employment offer, submitting Form I-129, getting approval of the petition, and applying for a visa with the US consulate in the country they are residing in.

 

H-1B Portability

Generally, when an H-1B employee wants to change employers, the new employer must file a new H-1B petition naming the employee as the beneficiary.  Previously, nonimmigrant employees had to wait for INS approval before commencing the new H-1B employment.  However, in 2000, the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) amended the Immigration and Nationality Act (INA) to allow a foreign national in an H-1B status to begin working for a new employer as soon as a new H-1B petition is filed, provided the foreign national has not engaged in unauthorized employment. The foreign national may accept the new employment upon the new employer’s filing of the new petition, and may be employed until this petition is adjudicated.  However, if the new petition is denied, the foreign national’s work authorization terminates.  When USCIS adjudicates the H-1B petition and grants an extension of stay, the employee may continue working for the new employer, and the employee’s I-9 form should be updated.

To use the portability provisions:

• The foreign national must have been lawfully admitted into the United States;
• An employer must have filed a non-frivolous petition for new employment on behalf of the foreign national;
• The petition must have been filed while the foreign national was in a period of stay authorized by the Attorney General; AND
• After lawful admission, the foreign national must not have been employed without authorization in the United States before the filing of such petition.

Filing is defined as the petition being physically received by the USCIS whether by paper or electronically. Additionally, a non-frivolous petition refers to a petition with the merits based in law or fact.

Lastly, H-1B portability does not apply to a nonimmigrant who is in a valid status other than H-1B. This is consistent with the text of INA § 214(n)(1), which refers specifically to foreign workers admitted in or otherwise provided H-1B status. See INA § 214(n)(1), 8 U.S.C. 1184(n)(1).

 

Job Flexibility (180 days rule)

If the alien who is in H-1 or L-1 status files an I-485 application after the employer-sponsored I-140 is approved, the alien can take advantage of the portability rule and change employers after 180 days have passed since the date of filing the I-485. In this situation, if the new employer petitions for H-1 or L-1 status for the alien, the alien will acquire new H-1 or L-1 status, which will maintain the alien’s lawful stay in the U.S. as a non-immigrant, even if the I-485 application is denied. However, if the new employer does not petition for an H-1 or L-1 for the alien and the alien uses an EAD to work for the new employer, the alien is not considered to be maintaining H-1 or L-1 status. Rather, the alien is considered to be in I-485 pending status. Thus, if the alien’s I-485 application gets denied, the alien cannot lawfully stay in the U.S. as nonimmigrant.

Section 106(c) of AC21, commonly known as the job flexibility provision, was enacted as Immigration and Nationality Act (INA) section 204(j).  This portion of the INA provides:

A petition under subsection (a)(1)(D) [redesignated as (a)(1)(F)] for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed. This provision permits certain foreign nationals to change employment on which their original adjustment of status application is based from one job to another, if both jobs are in the same or similar occupational classification.  The employer to whom the foreign national ported his or her adjustment of status application need not obtain a newly approved labor certification application. For the foreign national to change the offer of employment, his or her adjustment of status application, Form I-485, must have been pending with USCIS for 180 days or more.  The new employer need not file a new immigrant visa petition in this instance. Essentially, there is no need to restart the permanent resident process when changing jobs.

 

New Job is Same or Similar

One important aspect of the job change is that the new job must be the same or similar to the previous one. If a job shares essential qualities or resembles each other, there is potential AC21 portability. Evidence that will be taken into consideration of whether the jobs are the same or similar include: the job duties, the skills involved, if specific experience is needed, the type of education for the job (i.e. requires specific degrees), the training for the job, possible licenses required, and any other general job requirements along with other material and credible evidence. With respect to wage differences between the jobs, these are not determinative and are reviewed with considerance to geography, inflation, promotion, employer size, industry, and other relevant factors. Additionally, the standard of proof is by the preponderance of the evidence, meaning that the evidence makes something “more likely than not” or “probably true.”

The AC21 also permits lateral moves and career progression with respect to the change in jobs. For example, moving from a technical role to a managerial or supervisory role is allowed. However, these types of instances are allowed where the employee is primarily responsible for managing: the same or similar functions of the original job or the work of individuals whose jobs are in the same or similar occupational classification. Important factors to consider are the overreaching duties of the old and new position, and whether the same skill, experience, and education are required. Thus, it is permissible for a foreign national to change employment even in instances of career progression.

 

60-Day Grace Period

To further enhance job portability, the final rule of the AC21 establishes a grace period of up to 60 consecutive days during each authorized validity period for individuals in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications. This grace period allows workers in these classifications, including those whose employment ceases prior to the end of the petition validity period, to pursue new employment should they be eligible for other employer-sponsored nonimmigrant classifications or employment in the same classification with a new employer. See final 8 C.F.R 214.1(l)(2). This grace period can only occur once during each authorized validity period. Additionally, the worker is not considered as having failed to maintain nonimmigrant status solely based on a cessation of the employment.

When this grace period begins depends on the date of the cessation of work and the petition end date. The 60-day grace period is the sooner of 60 consecutive days after the cessation of work or the petition end date. To put it more simply, the grace period begins after the termination of employment or after the petition expires, whichever comes first. Thus, the 60-day employment-based grace period can occur at any time during the nonimmigrant’s authorized validity period, but only once during that period.