AC21 YATES MEMO PDF

The Memo provides clarification of current USCIS policy with regard to H1B extensions beyond the six-year limitations, H1B concurrent employment, and H1B employees attempting to change employers after reporting labor violations. It also reiterated guidance on changing employers during the employment-based, permanent residence process. For the benefit of MurthyDotCom and MurthyBulletin readers, we focus here on the issues of one-year H1B extensions beyond the six-year limit addressed by the Memo. The basic rule under AC21 is that H1B status can be extended in one-year increments if the foreign national is the beneficiary of a labor certification LC that was filed with the U. Department of Labor DOL at least days prior to the extension request.

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The memo contained some favorable procedural specifications regarding adjudication of I petitions in AC21 cases. The I is the immigrant petition for a foreign worker that is filed by an employer on behalf of an employee who is being sponsored for the green card. Although the memo covers a variety of matters, only the green card issues are explained here. The memo from Mr. Yates notes that the interim guidance it provides will be in effect until forthcoming regulations are published as a final rule.

Yates indicates that the proposed regulation may be more restrictive than the memo. However, it may be safest be mindful of the possibility of regulatory or policy changes when making a decision about whether to terminate employment with a green card sponsor and move to an alternative employer under AC The memo defines itself as a supplement to the existing guidance and that prior memos on AC21 remain. The May memo is in question-and-answer format. It poses the question, how is the USCIS to process I petitions that are unapproved in situations where the I was concurrently filed and has been pending for at least days and the individual is attempting to use the AC21 portability provisions.

The job offer underlying the I had to remain in effect until the I was approved. Thus, if the case reached the day mark, but the I was not yet approved, the individual could not safely move to a new job under AC This May memo from Mr. Yates takes a different approach to this situation. In such a situation, the examiner reviewing and adjudicating the file is instructed to review the I and determine if, under the preponderance of the evidence standard, the case is approvable or would have been approvable had it been decided within days.

The memo instructs the examiner that, if the I was approvable but for an ability to pay issue or other matter that came up after its filing, it should be approved. Once the I petition is approved, the I adjustment-of-status application is to be reviewed to determine whether the new position offered to the foreign national is in the same or similar occupational classification as required under AC Department of Labor.

If the case is found to be approvable based upon the RFE response, the examiner must follow the procedures set forth above. The May memo clarifies that, in order to use portability, the I petition must be approved at some point.

If an RFE is issued on a pending I and the response is not sufficient to warrant approval or no response is filed, then the I must be denied. The I must also be denied following the I denial. This May memo specifies that the examiner must review the job duties in the labor certification or, if a labor certification is not required, in the I These job duties are to be compared to the new job to determine if they both fall within the same or similar occupational classification.

Thus, although not stated, this argument and analysis should accompany the request for approval under AC21 portability. It has long been understood that AC21 does not have geographic limitations. The new job can be anywhere within the United States. The memo verifies that this is the case. The USCIS has previously stated that differences in the wage rates between the initial green card-sponsored position and the ACported position are permitted.

The question is whether the jobs are in the same or similar job category. Thus, a discrepancy in the wages is to be reviewed only to the extent that it is relevant to whether the jobs are the same or similar. The May memo from Mr. Yates restates this position. We would note that, at the Murthy Law Firm, we have seen AC21 cases approved with great variances in the wage rates between the old job and new job.

The key issue is whether the new position or job is in the same or similar job classification. The Legacy INS voiced concerns about this, since no new job would contain the multinational transferee requirement needed to initially qualify for this category.

That is, the beneficiary would not have had the required experience working abroad for the new company, even if it were a multinational company.

Some new sponsors would be strictly U. The new job still must meet the same or similar job classification requirement. We are pleased with this clarification since it comports with the language and intent of AC21 when it was passed.

However, the memo does state that it would be appropriate to check the legitimacy of the new employer and the job offer in connection with the I approval. So, the new employer may have to show financial viability and prove that there is a valid job offer in order for the foreign national employee and any family members to obtain the I approval.

Foreign nationals can port their cases to a self-employed position! This is a very favorable stance, as many foreign nationals desire to establish their own companies and, in that way, control their own destinies. The entrepreneurial spirit is strong among many immigrants. The memo reiterates the need to show that the new position or job is the same or similar.

It also states that the new employer and job offer must be legitimate. In these situations, the USCIS is to focus upon whether the original job offer was really the intended employment at the time the I and I were filed.

That is, the petitioning company must have intended to employ the foreign national beneficiary and the foreign national beneficiary must have intended to accept the position at the time of filing the I and the I Priority Date Maintained — Using portability under AC21 does not change the applicable priority date assigned to a case.

Qualifying Job Must Exist at Time of Adjudication The foreign national cannot still be seeking same or similar qualifying employment when the examiner reviews his or her case.

There must be an appropriate job offer at the time the examiner is ready to make a decision. If the visa numbers retrogress during this time, the portability provisions still apply. There does not have to be a visa number available in order to port.

As can be seen, this May memo from William R. Yates is favorable on many aspects dealing with green card portability under AC The memo provides clear instructions regarding various AC21 issues that are important to many people going through the immigration process.

JOHN DONNE A VALEDICTION FORBIDDING MOURNING PDF

Immigration

The memo contained some favorable procedural specifications regarding adjudication of I petitions in AC21 cases. The I is the immigrant petition for a foreign worker that is filed by an employer on behalf of an employee who is being sponsored for the green card. Although the memo covers a variety of matters, only the green card issues are explained here. The memo from Mr. Yates notes that the interim guidance it provides will be in effect until forthcoming regulations are published as a final rule.

IEC 1131-3 PDF

USCIS Memorandum on AC21

This post advocates that an H-1B seeking an extension beyond the six years may do so even though the other spouse is the beneficiary of a labor certification. There is no need for two spouses to have their own labor certifications, when only one will be required for both spouses to obtain permanent residence. USCIS must interpret existing ameliorative provisions that Congress has specifically passed to relieve the hardships caused by crushing quota backlogs in a way that reflects the intention behind the law. See Pub.

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