AC21 Portability Permits Physician to Change Employers After 6 Months of and Transfer H-1B Visa, PERM and Green Card Process

July 29, 2011 - This neurological physician was originally employed by a large practice group in Michigan.  We were retained to file the H-1B, PERM and green card applications for the original employer.  We filed the H-1B visa as well as the PERM applications which were approved relatively quickly.  With the PERM approval, we submitted a concurrent I-140/I-485 application and requested an EAD card as well as advance parole.  The EAD and advance parole were also issued.  However, approximately six months after the submission of the I-140/I-485 application, the position terminated, forcing the physician to seek employment with a different group.

The physician was successful in finding new employment with a small group in short order.  We then requested an H-1B transfer which permitted him to start working for the new group under AC21 once the H-1B transfer application was received by the USCIS.  We also requested that the pending green card petition (I-140/I-485) filed by the old employer be ported and transferred to the new employer under AC21.  We relied on the fact that the petition had been pending with the USCIS for at least 180 days.  After 180 days, an employee is permitted to accept other employment and transfer the green card petition.  Under the porting provisions of AC21, such a physician would not need to refile the PERM or green card petitions.  Instead, the old petition filed previously will be reviewed and approved under the new employment so long as the physician can prove that the new employer has offered him/her a substantially similar position.  The USCIS usually issues a Request for Further Evidence (RFE) to ask for information about the new employment which is compared to the old position.

AC21 Portability Permits Physician to Change Employers After 6 Months of and Transfer H-1B Visa, PERM and Green Card Process
February 8, 2012 - This neurological physician was originally employed by a large practice group in Michigan.  We were retained to file the H-1B, PERM and green card applications for the original employer.  We filed the H-1B visa as well as the PERM applications which were approved relatively quickly.  With the PERM approval, we submitted a concurrent I-140/I-485 application and requested an EAD card as well as advance parole.  The EAD and advance parole were also issued.  However, approximately six months after the submission of the I-140/I-485 application, the position terminated, forcing the physician to seek employment with a different group.

The physician was successful in finding new employment with a small group in short order.  We then requested an H-1B transfer which permitted him to start working for the new group under AC21 once the H-1B transfer application was received by the USCIS.  We also requested that the pending green card petition (I-140/I-485) filed by the old employer be ported and transferred to the new employer under AC21.  We relied on the fact that the petition had been pending with the USCIS for at least 180 days.  After 180 days, an employee is permitted to accept other employment and transfer the green card petition.  Under the porting provisions of AC21, such a physician would not need to refile the PERM or green card petitions.  Instead, the old petition filed previously will be reviewed and approved under the new employment so long as the physician can prove that the new employer has offered him/her a substantially similar position.  The USCIS usually issues a Request for Further Evidence (RFE) to ask for information about the new employment which is compared to the old position.

In this case, we received an RFE asking that we provide a letter from the new employer specifying the terms and conditions of the new employment as well as the salary, training and educational requirements for the new position.  We received the request on June 7, 2011 and responded shortly thereafter.  The green card petition for this physician and his family was approved on July 19, 2011, shortly after we submitted the RFE response.