Guide to AC21 and Green Cars in the U.S.

Posted by Frank Gogol

The green card process in America is complex, to say the least. To make things worse, nonimmigrant workers often get shackled with certain guidelines that they must meet. AC21 brought simplicity to the complex world of the United States green card quota system.

In this article, we’ll explain what AC21 is and what it means for H1B visa holders.

What Is AC21?

Enacted in October 2000, AC21 or American Competitiveness in the 21st Century Act was put into effect to increase the number of H1B visa workers coming entering country. To alleviate the shortage of skilled workers in the United States at that time, AC21 complemented the American Competitiveness and Workforce Improvement Act.

It provided two significant provisions to skilled foreign workers. First, it allowed H1B visa workers to change jobs before even obtaining their green cards. Previous to this, the workers were forced to work with an employer for six years before they got their green cards. AC21 gave foreign workers the ability to switch employers.

Second, they were also allowed to extend their status beyond their six-year statutory limit. Previously, it was limited by the number of visa slots available, and the processing was slow in nature. Also, the nonimmigrant workers were asked to depart after they had held the H-status for six years.

So, with the implementation of AC21, skilled foreign workers in the U.S. have much more immigration- and job-related flexibility.

Who May Request a USCIS H1B Extension With AC21?

H1B visa extensions can only be requested by highly skilled foreign workers employed in the U.S. on an H1B visa. This includes all categories like EB1, EB2, EB3, EB4, and EB5 or investors. These visas are given for a maximum of six years, but AC21 can be extended beyond the time frame.

What Are the AC21 Visa Extension Requirements?

To seek an extension of your H1B status, you need to meet certain eligibility criteria laid out by the Department of Homeland Security. You may extend your visa duration annually on a one-year incremental basis as long as you initiate the extension process at least 365 days before your six-year expiration date.

Additionally, if your priority date is not current, but your I-140 has already been approved, you are eligible for applying for a three-year extension.

Besides the above, the other critical requirements for an H1B visa extension are:

  • The change in employment should occur within the same or similar occupational classification (more on this topic in the below paragraph).
  • Your I-140 has been approved or can be approved by the time your I-485 is approved.
  • The Form has been pending for no less than 180 days.

How Are “Same or Similar” Jobs Determined

This is the most important section of AC21 that H1B visa holders should take into account when considering a job change. Known as the H1B portability, AC21 allows H1B visa holders to change employers under certain circumstances even without possession of the green card.

The requirements for H1B portability under section 214(n)(2) of the Immigration and Nationality Act are:

  • You have been lawfully admitted into the United States.
  • Your employer has filed a non-frivolous petition on your behalf for new H1B employment.
  • You have not been employed anywhere else without authorization before the filing of the non-frivolous petition.

Among other things, the USCIS has to determine the sameness or similarity of the two jobs in question. They should be in the same occupational classification. While there is no concrete answer to this, officials consider the following when evaluating sameness:

  • Job description, skill requirements, and experience details contained in the I-140 are compared to the new job being offered. They have to be almost the same.
  • The DOT code or SOC code mentioned on the labor certification will be used to determine the similar occupational classification of both jobs.
  • The salary package should be similar to the previous one. There should not be any drastic changes in CTC or stock options.

How to Inform the USCIS About a Job Change

The new regulation now codifies the use of Form I-485, Supplement J. Although not mandatory, it is generally a good idea to notify the USCIS about the job change since it will affect your immigration benefits.

When the USCIS adjudicates your I-485 when visas become available, you may face more questions from officials if you haven’t notified them. There is no particular form to notify the USCIS. You simply need to write a letter to the agency describing your job change. As a good practice, you should include details like job change dates, the motive for change, job description, wage information, statements proving “same or similar” occupational classification, etc.

The USCIS can issue a Request for Evidence (RFE) while adjudicating your petition requesting more information on the matter. They can also issue a Notice of Intent to Deny (NOID).

Can the USCIS Deny a Sixth-Year Extension?

The USCIS will most likely approve your sixth-year extension on a one-year incremental basis unless either the DOL or the USCIS issues a denial order for any reason. They can also revoke your existing labor certificate or deny the labor certification application, the I-140 petition, or the adjustment of status application.

The USCIS will grant a three-year extension to H1B visa holders with an approved I-140 petition until a final decision on I-485 is reached.

But whatever might be the case, the USCIS will provide reasons and may offer steps to correct denial.

How to Request a Sixth Year Extension

To request a sixth-year extension, you are required to follow the same procedure as a regular H1B extension. Additionally, you should provide documents, like a pending labor certification application, as evidence to support AC21. There are no additional forms or applications you are required to file. You should write a formal letter to the USCIS requesting an H1B extension after the sixth year.

Are There Any Benefits for Dependents?

Dependents or H4 visa holders receive the same benefits as H1B holders. Their visa duration gets extended beyond the six-year limit. Your dependents can get an extension for the same number of years as yours. But it doesn’t happen automatically. You should have your dependents file the I-539, Application to Extend/Change Nonimmigrant Status, along with your H1B extension petition. Otherwise, their application may get left behind and get out of status.

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Conclusion

As an H1B visa holder, you can seek an unlimited number of extensions until your green card becomes available. This means you can apply for the fifth, sixth, seventh, tenth time. Even though there are no forms associated with this, you should seek legal help from a registered attorney. Just like any other immigration-related process, even marginal errors result in denial.

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