FAQ » AC 21

How does one become eligible for the AC21 section 105 H-1B portability provisions?



A: This section allows a beneficiary of a petition to change employers to begin the new employment upon filing of the petition, rather than waiting for the petition to be approved. The petition must be non-frivolous, and the beneficiary must be a nonimmigrant admitted to the U.S. (no particular nonimmigrant category is specified, but the individual must have been previously issued an H-1B visa or otherwise provided H-1B status), must not have been employed without authorization before the petition was filed, and must be in an unexpired period of stay when the petition is filed.

How would an employer under the section 105 portability provisions fulfill the I-9 verification requirement?



A: The situation here is analogous to the 240-day grace period of 8 C.F.R. Section 274A.12(b)(20), which authorizes employment with the same employer for up to 240 days after an extension petition is filed. In both circumstances, the employment is authorized but there is no provision on the I-9 form for the documentation of this fact. Thus, employers may want to follow whatever documentation procedures they use for the 240-day grace period.

Is any provision made for continuity of H-1B validity in corporate restructuring situations?



A: Yes. A separate measure, the Visa Waiver Permanent Program Act, included a provision that an amended H-1B petition is not required where a new corporate entity succeeds to the interests and obligations of the original employer, and where the terms and conditions of employment remain the same. The employer is required to maintain a list of the H-1B employees transferred to it; maintain in the public access file a list of the affected LCA numbers and their dates of certification, a description of the new entity¹s actual wage system, the EIN of the new entity and a sworn statement from an authorized representative the new entity expressly assuming the liabilities and obligations of the existing LCAs and containing certain specified language. A new LCA (and H-1) is required if the H-1B worker changes jobs or where the new entity/employer seeks to hire a new H-1B worker or to extend an existing H-1B petition. The new employer may not utilize H-1B slots left over from the previous entity¹s LCA for a worker hired after a reorganization of restructuring.

Does AC21 make adjustment more desirable than consular processing?



A: The provisions of section 104(c) and 106(a) for extending H-1Bs beyond the sixth year would apply whether the individual intends to pursue adjustment of status or consular processing. 

The permanent residency portability provision of section 106(c), however, specifies the filing of an adjustment of status application as a prerequisite for eligibility. Under this provision, someone whose adjustment application has not been adjudicated for 180 days or more can change jobs and/or employers if the new job is in the same or a similar occupational classification as the one for which the petition was filed.