아래 7번 항목 ( 이민국 규정 : ac21 해당자 에 한함 ) 보시면 타지역 이사가 문제가 없습니다. 일부 미국에 있는 한국 신문의 이민담당 기자들이 가끔 어이 없는 이민 관련 기사 … 물론 자극 적인 기사를 써야 사람들이 보지만은,,, 가끔 황당한 , 그리고 어이 없는 글들을 올리고 있지요. 위글도 한국 신문에서 발췌 한걸로 보입니다만,, 오바마가 이민 개혁 한다고 하는 소리만큼 어이가 없네요.
By administrator | 03 May 2009
AC21 portability is a fuzzy area of green card law, the FAQ’s here are intended for informational purposes based on our best research efforts, these laws and rules are always changing. Please consult a good immigration lawyer before making any decisions.
General FAQ’s
1. What is AC21?
AC21 stands for the The American Competitiveness in the Twenty-first Century Act (AC21), this is particularly of relevance to people who have applied for Adjustment of Status (AOS) while residing in the United States.
2. Why is AC21 relevant to AOS applicants?
This is relevant because as long as the person had previously filed the I-485 when the priority dates were current and that I-485 remains pending, one does not need to have a current priority date in order to change jobs under AC21. This is essentially “portability”
3. Under what circumstances is portability applicable?
a. I-485 is pending due to unavailability of visa numbers or admin delays for more than 180 days
b. the new job is same or similar in nature
4. Is it the receipt date or the notice date that governs the counting of the 180-day period under AC21?
Based upon the wording of the law and the USCIS interpretation of AC21, the 180 days should be counted from the date the USCIS receives the filing at one of its Service Centers i.e. the receipt date.
5. What are all these acronyms I keep hearing?
RFE – Request for Evidence, USCIS can issue one for anything – birth certificates, educational qualifications, marriage proof, employment proof, medical tests or anything they feel is inadequate
NOID – Notice of Intent to Deny, USCIS issues this if they intend to deny your green card application, you will then get 15-30 days to respond to file a MTR
MTR – Motion to Reopen, you ask the USCIS to reconsider your application based on new evidence or error on their part.
EAD – Employment Authorization Document, given to you after you apply for I-485, seperate application required, allowing you to work, and needs to be is renewed for one or two years.
AP – Advanced Parole, travel document issued to you after you apply for I-485, seperate application required and needs to be renewed every year
Job loss or Layoff related
1. If I lose my job before the 180-day period. Can I still use portability?
Quite possibly, provided the I-485 remains in pending (unadjudicated) status for at least 180 days. It is the I-485 processing time that is important, not when the beneficiary changes positions. This is because the “green card” (GC) is based upon a future job offer. The person is not required to have worked for the GC-sponsoring employer prior to filing or obtaining the GC. Accordingly, it appears the AC21 law did not intend to change the prior law, which only requires a future job offer with respect to the GC sponsorship in employment-based cases.
2. My new job has a different title, but the same basic duties as the job described in the labor certification. Will that work?
It should, though USCIS makes a case-by-case determination. The requirement of “same or similar” is determined by the description of the essential job duties. The title may change, as different companies use different titles. The USCIS position appears to be that the core job duties should be essentially the same or similar in order for the USCIS to approve the I-485 with a new employer.
3. What is meant by “same or similar” job?
The position must have the same essential job duties. For example, in the computer field the position can use different software and computer languages but it must require the same basic functions. A programmer is still a programmer, even if using different languages or working on a different application.
4. My existing employer intends to withdraw the I-140 If I change my job, how will this affect my green card application?
While your I-485 is your own application and the employer cannot withdraw it, the entire application rests on the I-140, which is the employer’s application. Under previous law, the employer controlled the I-140 throughout the process. Withdrawal of the I-140 meant denial of the I-485. This matter has not been addressed under AC21. At this point, it appears that if the employer were to withdraw the I-140, the USCIS possibly could issue a notice to the beneficiary with respect to the processing of the I-485. The beneficiary might then have the opportunity to respond by showing another job offer. USCIS has not provided specific instructions or regulations as to how this type of situation should be handled in light of AC21.
5. What may happen is my employer withdraws my I-140?
Your green card is based on your future job not the current, so first you must look for a same or similar job, assuming you get a job, these are the following hypothetical scenarios:
a) during adjudication USCIS will issue a RFE, you respond showing you have a same/similar job and thats it
b)USCIS issues a NOID and you then respond with a MTR and they open or deny your case
c) there is no RFE or MTR and you get your green card
6. If I change jobs, does my sponsoring employer have to withdraw my I-140 or tell USCIS?
No. Unlike the H-1, where the employer must inform the USCIS of termination of employment, there is no affirmative requirement to tell the USCIS about changes in employment for I-140 beneficiaries or to withdraw the I-140, However as a matter of principle most large companies will withdraw the I-140 to avoid any residual legal issues.
7. Does the new job have to be in the same geographic area as the job in the labor certification?
No. Again based on the June 2001 USCIS Guidance, there are no geographic limitations on the job.
8. Should I inform USCIS I intend to use AC21 portability provisions?
AC21 does not state that notification to USCIS is required. The USCIS guidance on the issue says that it is “expected” that a letter will be sent to USCIS. There is also no particular format for sending a letter advising of the change in jobs.
