The American Competitiveness in the 21st Century Act (AC21) has considerably impacted U.S. immigration, particularly employment-based visas. While AC21 provides job portability to applicants undergoing adjustment of status, it also introduces specific rules and risks that must be understood and navigated carefully. This is especially pertinent for holders of an L-1A visa who are considering employment-based I-485 applications.
The 180-Day Rule and Job Portability
One of the significant provisions of AC21 is that an applicant must have a pending adjustment of status (I-485) application for at least 180 days before requesting job portability. The counting starts from the date the application is correctly filed with the United States Citizenship and Immigration Services (USCIS) and continues until the request for job portability is made.
Occupational Classification
Another crucial point is that the new job offer must be in the “same or similar occupational classification” as the initial job offer on which the approved I-140 petition is based. USCIS will evaluate various factors, such as managerial or supervisory roles and the nature of duties performed by employees who are managed or supervised, to determine the similarity of the new position to the original job.
L-1A Holders and EAD
For L-1A visa holders with employer-sponsored I-140 approval, changing employers while maintaining L-1A status can be relatively straightforward. However, if you use an Employment Authorization Document (EAD) to work for a new employer, your L-1A status becomes invalidated. From this point on, your ability to reside in the U.S. hinges on the outcome of your I-485 application.
Risks with Concurrent Filing
The risks increase substantially if you file your I-485 application concurrently with the employer-sponsored I-140 application. Changing employers before receiving I-140 approval can result in the original sponsor withdrawing their sponsorship. This could potentially lead to terminating your I-140 and I-485 applications, putting your immigration status at risk.
The Safest Approach
The most prudent approach for L-1A holders with employer-sponsored I-140 petitions is to wait until their I-140 applications are approved before considering a job change. This minimizes risk and ensures a safer transition during the status adjustment process.
Conclusion
Navigating the complex landscape of employment-based I-485 applications while holding an L-1A visa is fraught with intricacies. Understanding the rules and risks associated with AC21 and job portability is crucial for making informed decisions about your career and immigration status. Consulting with a qualified immigration attorney can provide personalized guidance tailored to your situation.
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