American Competitiveness in the 21st Century Act (AC21)
The passage of the American Competitiveness in the 21st Century Act (AC21) in 2000 increased the number of H-1B visas available, and sect. 105 of AC21 made it easier for those foreign workers in H-1B specialty occupations to switch jobs or “port.” Sects. 104(c) and 106(a) of AC21 also allow foreign nationals to extend their H-1B visa status beyond the six-year statutory limit for H-1Bs to remain in the United States.
Finally, sect. 106(c) of AC21 allows beneficiaries of I-140 employment-based petitions that have been approved whose I-485 Applications to Adjust Status to Permanent Resident have been pending 180 days or more to move to a new employer if the new job offer is in the same or a similar occupation.
Although AC21 provided many benefits to H-1B beneficiaries and beneficiaries of employment-based petitions for permanent residence, it is wise for any beneficiary or employer to consult an attorney to be sure that a change of jobs is properly handled and in compliance with United States Citizenship and Immigration Services (USCIS) standards.
Houston Immigration Lawyer for AC21 Assistance
Are you or one of your workers attempting to change jobs while here on an H-1B immigrant visa? Karam Immigration Law represents clients facing AC21 issues in communities throughout Harris County, Montgomery County, Brazoria County, Fort Bend County, and Galveston County.
Houston immigration attorney Kathryn Karam is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. You can have her review your case and help you understand your legal options by calling (832) 582-0620 right now to schedule a consultation.
Texas AC21 Information Center
- What did this Act do for immigrants?
- How do immigrants retain employment-based green cards when changing jobs?
- What does “same or similar occupational classification” mean?
- Where can I learn more about AC21?
Key Provisions of AC21
AC21 has several sections that made many changes to immigration rules. Some of the changes that specifically affected H-1B visas included:
- Increased the Limit on H-1B Allotments — Section 102 of AC21 increased the caps that had contributed to an H1-B backlog that the U.S. experienced at the turn of the millennium.
- Removed H-1B Visa Limitations for Universities, Research Facilities, and Graduate Degree Recipients — Under Section 103 of AC21, nonimmigrant visas issued to aliens employed or offered employment at institutions of higher education, related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations would no longer count against the annual H-1B cap.
- Removed Caps on Per Country Ceilings — Section 104 stated that when the total number of permanent employment visas available for a calendar quarter exceeds the number of qualified immigrants who may otherwise be issued such visas, the visas made available under that paragraph shall be issued without regard to the numerical limitation.
- Increased Portability of H-1B Workers — Section 105 allows workers previously issued visas or otherwise provided nonimmigrant status to accept new employment upon the filing by the prospective employer of a new petition on their behalf.
- Extended Stays in Cases of Lengthy Adjudications — Under Section 106, foreign H-1B workers were allowed to stay beyond six years if their green card applications have been in processing for at least one year.
- Increased Portability of Beneficiaries of Employment-Based (I-140) Petitions — Section 106(c) allows Beneficiaries of I-140 petitions to accept new employment in the same or in a similar occupation and remain eligible to adjust status to Lawful Permanent Resident where the I-140 petition is approved and their I-485 Application to Adjust Status is pending for 180 days or more.
AC21 Benefit: H-1B Extensions Beyond the Six-Year Limitation
Section 106(a) of the American Competitiveness in the 21st Century Act allows individuals who have held H-1B status and are beneficiaries of pending or approved Labor Certifications or pending employment-based (I-140) petitions to extend their H-1B status in one-year increments until a decision is made on either their Labor Certification or I-140 petition.
Section 104(c) of the American Competitiveness in the 21st Century Act allows individuals who have held H-1B status and are beneficiaries of approved employment-based (I-140) petitions whose priority dates are not yet current to apply for extensions of their H-1B status beyond the six-year limitation. Under sect. 104(c), these individuals may obtain extensions of their H-1B status in three-year increments.
AC21 Benefit: Job Portability
One of the most common AC21 provisions utilized by immigrants is the portability that allows workers to retain employment-based green cards when they change jobs. In order to qualify for AC21 portability, an alien must have:
- The “same or similar” occupational classification for his or her new job;
- A permanent labor certification application approved by the Department of Labor (DOL);
- An approved Immigrant Petition for Alien Worker (Form I-140); and
- An Application to Register Permanent Residence or Adjust Status (Form I-485) approved or pending for at least 180 days.
Even though immigrants are not necessarily required to do so, it is often beneficial for a foreign national to notify USCIS of his or her intention to change jobs. If the alien moves as part of accepting a new job, then he or she should also file a Change of Address (Form AR-11) with USCIS.
Same or Similar Occupational Classifications for AC21 Portability
Section 106(c) of AC21 is more commonly known as the “job flexibility provision.” It is codified in section 204(j) of the Immigration and Nationality Act, so sources on this provision often refer to “204(j) portability.” It allows immigrants to change 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.
The terms used in AC21 are confusing for many people. What is an occupational classification? And what is considered to be same or similar?
The DOL uses the Standard Occupational Classification (SOC) system to group and classify jobs and occupations. In a 2005 memo, the USCIS stated that adjudicators should consider the following factors when determining whether new employment is the same or similar occupational classification as the employment in the initial I-140:
- Description of the job duties contained in the Foreign Labor Certification (ETA 750A or ETA 9089) or the I-140 and the job duties in the new position;
- The SOC code from the Immigrant Petition for Alien Worker (Form I-140) and the appropriate SOC code for the new position; and
- Any substantial discrepancy between the previous and the new wage.
USCIS issued a draft policy memorandum on November 20, 2015 entitled “Determining Whether a New Job is the ‘Same or a Similar Occupational Classification’ for Purposes of Section 204(j) Job Portability.”
This memo noted that to determine if the new job is in either the same or a similar occupational classification, USCIS looks to common dictionary definitions and its general practice and expertise. USCIS may also refer to the SOC system. USCIS may also look to wage differences in the old and new positions, but wages being higher or lower in the new position may not be dispositive.
USCIS officers consider the totality of the circumstances to determine if two jobs are the same or similar for porting purposes. Many situations are handled on a case-by-case basis.
American Competitiveness in the 21st Century Act (AC-21) — You can review the full text of the bill as passed by Congress on October 17, 2000. Memoranda and guidance regarding provisions of AC21 issued in 2001, 2003, 2005, and 2008 are available on the USCIS website.
Questions about Same or Similar Occupational Classifications Under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) — You can find answers to some frequently asked questions about the same or similar occupational classification on this section of the USCIS website. There are also links to a December 27, 2005 USCIS AC21 Memo and the Dictionary of Occupational Titles (DOT).
Find a Lawyer in Houston for Help With AC21 Issues
If you or one of your employees needs assistance with an I-140, I-485, or any other aspect of AC21 eligibility, it is in your best interest to have legal counsel. Karam Immigration Law represents clients in around the Greater Houston area, including Sugar Land, Pasadena, Magnolia, Cypress, League City, The Woodlands, Bellaire, Conroe, and Pearland.
Harris County immigration attorney Kathryn Karam specializes in Immigration and Nationality Law, and she exclusively handles immigration matters. Call (832) 582-0620 today to schedule a confidential consultation that will let her review your case.
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