Job Switch after 180 days of filing of an Employment Based I-485, pursuant to AC21 Section 106 c (2)(iv)
I.EXPLANATION OF THE LAW AND PROCEDURE:
Section 106(1) and (2) of the American Competitiveness in the 21st Century Act (referred to as AC21), which was enacted into law on Oct 17, 2000, state as follows:
SEC. 106. SPECIAL PROVISIONS IN CASES OF LENGTHY ADJUDICATIONS
c.INCREASED JOB FLEXIBILITY FOR LONG DELAYED APPLICANTSFOR ADJUSTMENT OF STATUS-
Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is amended by adding at the end the following new subsection:
`(j) JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS TO PERMANENTRESIDENCE- A petition under subsection (a)(1)(D) for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.'.
Section 212(a)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)(A)) is amended by adding at the end the following new clause: (iv) LONG DELAYED ADJUSTMENT APPLICANTS- A certification made under clause (i) with respect to an individual whose petition is covered by section 204(j) shall remain valid with respect to a new job accepted by the individual after the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the certification was issued.'.
In the INS memorandum dated June 19, 2001, the INS provided initial guidance on the implementation of this law with respect to AC21 106 (c), as follows:
“In instances where the applicant no longer intends to be employed by the employer who sponsored him/her on the I-140, the Service should request a letter of employment from the new employer. The letter from the new employer verifying that the job offer exists should contain the new job title, job description, and salary.”
Hence, Section 106(c) of AC21and the INS’ guidance memorandum are interpreted to mean that in order to change jobs, the Applicant should do the following:
(i)Write to the INS, notifying it of the job change to a job that is similar to one on which the I-485 is based;
(ii)Supply to the INS, a letter from the new employer providing the job title, salary and job description of the new employment.
The applicants do not have to wait for an answer from the INS prior to starting the new employment, but INS will assess whether the two jobs are similar.