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| AC21 - Quick Reference !! |
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AC21 portability is generally available to the applicant whose I-140 has been approved and I-485 has been pending at least 180 days. This statement is not TRUE.
If a 485 is pending for more than 180 days, you can change employers, irrespective of whether I-140 is approved or not. Under this sccenerio, you can change employer, as the previous employer has no control over your I-140 and even if they revoke I-140, all the service centre needs is AC21 papers. This rule is irrespective of the service centre in which the application is filed.
While your I-485 is your own application and the employer cannot withdraw it, the entire application rests on the I-140, which is the employer's application. Under previous law, the employer controlled the I-140 throughout the process. Withdrawal of the I-140 meant denial of the I-485. This matter has not been addressed under AC21. While it seems that the employer should lose control of the I-140 after 180 days in order to make AC21 fully effective, this issue needs further clarification. At this point, it appears that if the employer were to withdraw the I-140, the INS possibly could issue a notice to the beneficiary with respect to the processing of the I-485. The beneficiary might then have the opportunity to respond by showing another job offer. INS has not provided specific instructions or regulations as to how this type of situation should be handled in light of AC21.
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