American Competitiveness in the Twenty-First Century Act

On October 17, 2000, The American Competitiveness in the Twenty-First Century Act (AC21) was signed into law by President Clinton. Among other things, the new AC21 law provided greater job flexibility to foreign nationals experiencing long delayed adjustment of status by allowing for I-140 portability.

I-140 Portability

Approved I-140 Petitions

AC21 106(c) allows for greater job flexibility for long delayed green card applicants. A foreign national may take advantage of AC21 portability and accept a new position with the same or a different employer if the following conditions are met:

• The foreign national's I-485 application for adjustment of status (green card application) has been pending for 180 days or more; and
• The new job is in the same or a similar occupational classification as the job for which the original I-140 petition was approved.

In instances where the foreign national no longer intends to be employed by the original I-140 petitioner, the foreign national's new employer should send a letter to the USCIS containing the new job title, job description and salary. The purpose of the letter is to verify that the new job exists and to provide the information necessary to determine if the new job is in the same or a similar occupational classification. Notably, a foreign national may also port to self-employment so long as the "same or similar occupational classification" requirement is met.

Unapproved I-140 Petitions

In certain situations, the I-140 petition and I-485 application to adjust status may have been filed concurrently and both remain pending for 180 days or more. Foreign nationals that attempt to move to a new position or employer with an unapproved I-140 petition are not automatically entitled to Section 106(c) portability under AC21. If a foreign national attempts to port to a new employer or position off of an unapproved I-140 petition, the USCIS must first review and approve the I-140 petition. Once the I-140 petition is approved, the USCIS will then examine the I-485 adjustment of status application to determine whether the new position is in the same or a similar occupational classification. Only if the I-140 petition is approved and the "same or similar occupational classification" requirement is satisfied will USCIS grant portability under Section 106(c).

Jurisdiction Of Immigration Judges To Apply INA Section 204(j)

In 2005, the Matter of Perez Vargas came before the Board of Immigration Appeals (BIA), the highest administrative body for interpreting and applying immigration laws. The BIA's decisions are binding on immigration judges and the Department of Homeland Security, but subject to review by the Federal Courts. In the Matter of Perez Vargas, the BIA upheld the decision that immigration judges lack jurisdiction to determine whether an approved I-140 petition remains valid under Section 204(j) of the Immigration and Nationality Act (INA). INA Section 204(j) provides, in the event a foreign national's adjustment of status application has been pending for 180 days or more, a foreign national can change jobs or employers and maintain their I-140 petition so long as the new job is in the same or a similar occupational classification.

Upon review by the Fourth Circuit in Perez-Vargas v. Gonzales, the Court vacated the BIA's determination in Matter of Perez Vargas and held that immigration judges do have the authority to determine whether a foreign national's new job is in the same or a similar occupational classification as the job approved in the I-140 petition and, accordingly, whether the foreign national's approved I-140 petition remains valid under Section 204(j) of the INA. The Fifth Circuit (Sung v. Keisler) and Sixth Circuit (Matovski v. Gonzales) have heard similar cases and, consistent with the Fourth Circuit's holding, overturned the BIA's determination that immigration judges lack jurisdiction under INA Section 204(j).