Analysis of the New AC21 USCIS Interpretive Memorandum by Greg Siskind USCIS has released a May 12, 2005 memorandum interpreting a number of important provisions from AC21, the immigration law that created such concepts as the portability of H-1B visas and employment-based adjustment of status cases. The memorandum is from William Yates, the Associate Director of Operations at USCIS' headquarters in Washington and it is directed to the Directors of the USCIS Regional Service Centers. The memorandum is designed to provide interim guidance until the release of regulations currently in development. The four subjects covered in the memorandum are The interplay between concurrent filing of I-140 and I-485 petitions and the I-140 portability provision in AC21; The processing of H-1B cases under the seventh year extension provision in AC21; The handling of seventh year extensions in cases where the applicable employmentbased category is backlogged; and Processing H-1B cases in cases where the H-1B portability provision of AC21 comes into play. Yates notes that prior AC21 guidance memoranda remain in effect and the new memorandum only provides supplemental assistance. ADJUSTMENT PORTABILITY UNADJUDICATED I-140S AND ADJUSTMENT PORTABILITY The first issue addressed is how to handle adjustment portability when 180 days have passed since filing the I-140 and I-485, but the I-140 has not yet been approved. The key point is that portability can be permitted in this case. The memorandum then provides guidance for examiners on how to handle such cases. If the underlying I-140 is approvable, the examiner is instructed simply to proceed with processing the I-485. If the I-140 is approvable but for an ability to pay issue or an issue arising after filing the I-140, the case should be approved on its merits and then the examiner should determine if the new job meets the portability test of being in the same or a very similar occupation. If additional evidence is needed to resolve a significant postfiling issue such as ability to pay, the examiner can issue a request for evidence to try to resolve the issue. If the examiner then finds the case approvable, it can then move to the adjustment application. However, there is still a significant risk for an employee in a case like this. If an RFE is issued on the I-140 and the employer either fails to respond or indicates that the employee is no longer working for the employer, the examiner will deny the I-140 and also deny the adjustment application. "SAME" AND "SUBSTANTIALLY SIMILAR OCCUPATIONS One of the more difficult areas for immigration lawyers in the AC21 adjustment portability statute has been the question of whether a new job meets the "same" or "substantially similar" occupation test. The new memorandum provides some specific information on
what these terms mean. Three factors will be used to determine if the test is met are A description of the job duties in the labor certification application or the initial I- 140 and the job duties of the new job. The Dictionary of Occupational Titles code or the SOC code assigned to the initial I- 140 employment in labor certification cases or the appropriate code for I-140 cases not requiring a labor certification filing compared to the DOT and/or SOC code appropriate for the new position. A comparison of the wages for the old and the new job. A minor difference would not matter, but a substantial change might be a factor in determining if the two jobs are the same. A change in geographic location should NOT be considered by an examiner. And the offer of new employment needs to be in place at the time the adjustment application is adjudicated. PORTABILITY FOR MULTINATIONAL EXECUTIVES AND MANAGERS EB-1 multinational executives and managers CAN avail themselves of adjustment portability even when the new company is not related to the original sponsoring employer. But the new position must still meet the "same or substantially similar" test noted above. REQUIREMENTS OF THE NEW EMPLOYER A new employer is NOT required to demonstrate an ability to pay the worker. However, it is permissible to ask questions to see if the new employer is bona fide and an adjustment applicant still must document that he or she will not become a public charge. A new employer is NOT required to file a new labor certification application and a beneficiary of a labor certification from an earlier employer can still benefit from that earlier filing. SELF EMPLOYMENT AND ADJUSTMENT PORTABILITY The new Yates memorandum makes it clear that it may be permissible for an applicant to port to a position of self employment. However, the basic "same or substantially similar" test needs to be met, the new employer needs to be legitimate, and the examiner can probe whether the initial job was really the position of intended employment at the time the application was filed. WHAT IS THE 180 DAY CLOCK ACTUALLY COUNTING? One of the more confusing aspects of portability is whether the 180 day clock means that an applicant needs to remain with the sponsoring employer for 180 days or if it is referring to the time that the adjustment application needs to be pending for portability to apply. The new memorandum takes the more latter and more liberal interpretation. The basis for adjustment is not actual or current employment, but a prospective job. In fact, the I-140 need not be based at all on an applicant's current job. The only requirement is that the I- 485 must be pending 180 days and, importantly, that the applicant truly intended to work for the initial I-140 sponsor upon approval of the adjustment. Examiners are not permitted to presume the absence of such intent.
WHEN IS THE I-140 SERVING AS THE BASIS FOR PORTABILITY NO LONGER VALID? The I-140 will no longer be valid for portability purposes when it is withdrawn by the employer before the I-485 has been pending 180 days, where the I-140 is denied, or where the I-140 is revoked and the revocation did not take place before after the I-485 has been pending for 180 days. WHAT HAPPENS TO ADJUSTMENT PORTABILITY WHEN EB PRIORITY DATES RETROGRESS AFTER THE ADJUSTMENT IS FILED? Adjustment portability still is permitted in such cases and the 180 day clock continues even if a visa number is no longer immediately available. WHAT HAPPENS TO AN APPLICANT'S PRIORITY DATE AS A RESULTING OF PORTING IN AN ADJUSTMENT CASE? Nothing. The priority date remains the date of the filing of the initial labor certification or the date of the filing of the I-140 when an approved labor certification is not required. H-1B SEVENTH YEAR EXTENSION ISSUES TIMING OF AN H-1B SEVENTH YEAR EXTENSION REQUEST The new memorandum addresses the question of whether an applicant must first get an approval to fulfill the balance of six years before then requesting an extension to go beyond six years under the seventh year extension request rules. This might be the case where someone had an approval to take them into the middle of six years, but not to the end of the sixth year and the person has a labor certification application already pending for a year. The USCIS takes the position that a seventh year extension request could be asked for at this point without having to get an approval first to reach the end of six years. The approval beyond the sixth year still could only be granted in a one year increment, however. The applicant needs to have completed the one year labor certification or I-140 post-filing period before the requested start date on the seventh year extension period. A final decision to deny a labor certification or I-140 that is the basis for a seventh year extension will result in any additional one year extensions being denied, though it will not affect the approval that was made before the denial. Until one's right to appeal an I-140 is exhausted or an actual I-140 appeal is denied, the decision is not considered "final." Also, in the case of an extension based on a labor certification, the I-140 need not be filed before requesting the seventh year extension even if the labor certification has been approved. LABOR CERTIFICATION SUBSTITUTIONS AND SEVENTH YEAR H-1B EXTENSIONS In the case of a labor certification beneficiary substitution, only one party can apply for a seventh year extension based on that case. Only the "current" beneficiary the one most recently substituted into the labor certification is eligible for the extension. EFFECT OF CHANGING EMPLOYERS ON SEVENTH YEAR EXTENSIONS The labor certification or I-140 that serves as the basis for a seventh year extension need
not have been filed by the same employer that is filing for the H-1B. EFFECT OF CONSULAR PROCESSING ON SEVENTH YEAR EXTENSIONS It also does not matter if an applicant intends to consular process his or her green card application rather than adjusting status. SPOUSES, CHILDREN AND SEVENTH YEAR EXTENSIONS H-4s are eligible for extensions just as H-1B principal applicants are. Spouses also on an H-1B are not entitled to the seventh year extension for their own H-1B case unless they independently meet the AC21 seventh year extension requirements. H-1B EXTENSIONS BASED ON THE PER COUNTRY CEILING PROVISION OF AC21 Section 104(c) of AC 21 permits EB-1, EB-2 and EB-3 applicants to seek an extension of their non-immigrant status when their green card applications are being held up because the per country limitations on a particular green card category are backlogged. To qualify for an H-1B extension in this case, the I-140 needs to be approved. Extension applications under this provision may be granted in increments of up to three years. And despite the reference in AC21 to only granted a one time protection under this section, the new memo makes it clear that a qualifying alien may be granted more than one extension under the provision. H-1B PORTABILITY RULES UNDER AC21 "PORTING" WHEN A PERSON IS NO LONGER HAS A VALID I-94 OR THE APPROVED PETITION HAS EXPIRED. Porting is still permitted if the applicant remains in a "period of stay authorized by the Attorney General." A common example of this situation would be if one timely files for an extension of an H-1B with Employer A, the I-94 and original petition expire after filing the extension and then the applicant wants to switch to Employer B. The timely extension application ensures that the worker is in legal status so portability still is available. SUCCESSIVE H-1B PORTABILITY PETITIONS An applicant who takes advantage of portability for one employer and then decides to move to another can claim portability for the next job as long as the applicant can separately show that each of the two jobs met the requirements for H-1B classification and the applicant is otherwise eligible for extension of stay. This strategy can be risky, however, since the USCIS states in the memorandum that if an applicant's H-1B status expires while the petitions are pending and one of the petitions is denied, the "bridge" will be undercut and portability will not be available anymore. Gregory Siskind (gsiskind@visalaw.com) is a partner in the law firm of Siskind, Susser, P.C. - Immigration Lawyers, which has offices in the United States and around the world. He has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. He is an active member of the American Immigration Lawyers Association (AILA) where he recently served as chairman of
the Physicians Committee. He is currently chairman of the Foreign Medical Graduate Taskforce. He is a member of the American Bar Association (ABA), where he serves on the Governing Council of the Law Practice Management Section and recently served as Chairman of the Law Practice Management Publishing Board. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a website for his practice and he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. He is the author of The Lawyer's Guide to Marketing on the Internet, published by the ABA and a contributing author to Immigration Options for Physicians, Second Edition, recently published by the American Immigration Lawyers Association. He graduated magna cum laude from Vanderbilt University and received his law degree from the University of Chicago.