In the late 20th century, the United States was facing intense competition in the global economy, particularly in the high – tech and knowledge – based industries. There was a growing recognition that the existing immigration system was not flexible enough to meet the needs of the U.S. labor market. Many highly skilled foreign workers were being deterred from coming to the U.S. or staying in the U.S. due to long – wait times for employment – based visas, complex regulations, and a lack of portability.

The main goals of the AC21 act were two – fold. Firstly, it aimed to attract and retain highly skilled foreign workers in the United States. By doing so, it was believed that the U.S. could enhance its competitiveness in the global economy, especially in fields like technology, science, and research. Secondly, AC21 sought to streamline the immigration process for these workers, making it more efficient and less burdensome.

Under normal circumstances, an H – 1B visa holder is generally limited to a maximum stay in the United States. However, AC21 introduced a crucial provision that allows H – 1B visa holders to extend their stay beyond the limit under certain conditions. If an H – 1B visa holder has a pending labor certification or an employment – based immigrant visa (green card) petition that has been pending for a long time, they can apply for an extension of their H – 1B visa in increments. This is a significant relief for many workers who are stuck in the long and often backlogged green card application process.

Another important aspect of AC21 regarding H – 1B visas is the ability of visa holders to change employers more easily. Once an H – 1B visa holder has been in the United States for a while, they can change to a new employer without having to start the entire H – 1B visa application process from scratch. The new employer simply needs to file an H – 1B transfer petition, and the worker can start working for the new employer as soon as the petition is filed. This provision has increased the mobility of H – 1B visa holders in the U.S. labor market, allowing them to seek better job opportunities.

Before AC21, if a foreign worker’s labor certification (the first step in the employment – based green card process) was approved and then they changed jobs, they often had to start the entire green card process over again. AC21 changed this. It allows a foreign worker to “port” their approved labor certification to a new job, provided that the new job is in the same or a similar occupational classification. This means that if a worker has already gone through the time – consuming and often expensive process of obtaining a labor certification for one job, they can use that same labor certification to support their green card application for a new, related job.

The 485(a)(4) provision of AC21 is also very significant. It allows certain adjustment of status applicants (those applying for a green card from within the United States) to continue with their application even if their employment situation changes. For example, if a person’s employer goes out of business or revokes their employment – based immigrant visa petition, as long as they can show that they had a good – faith offer of employment at the time of filing their green card application, they may still be eligible to adjust their status to that of a permanent resident.

As mentioned earlier, H – 1B visa holders are one of the main groups that can benefit from AC21. Those who are in the middle of the green card application process and are facing long wait times can take advantage of the H – 1B visa extensions. Also, the ability to change employers more easily gives them more control over their careers in the United States.

Foreign workers who are in the process of applying for an employment – based green card can benefit from the portability of labor certification and the 485(a)(4) provision. This is especially important for those who may experience changes in their employment situation during the long – drawn – out green card application process.

U.S. employers also stand to gain from AC21. The increased flexibility in the H – 1B visa program and the green card process makes it easier for them to hire and retain highly skilled foreign workers. Employers can attract talent from a wider pool, as workers are more likely to consider jobs in the U.S. knowing that they have more options and flexibility in terms of their immigration status.

To apply for an H – 1B visa extension under AC21, the visa holder needs to provide documentation showing that their labor certification or employment – based immigrant visa petition has been pending for a long time. This typically includes copies of the original labor certification or immigrant visa petition, as well as any correspondence from the U.S. Citizenship and Immigration Services (USCIS) regarding the status of the petition. The employer also needs to file the H – 1B extension petition on behalf of the employee, along with the standard H – 1B petition documentation, such as a job offer letter, evidence of the employer’s ability to pay the proffered wage, and the employee’s educational and work experience documentation.

The employer files the H – 1B extension petition with the USCIS. The petition can be filed either through the regular processing route or, for an additional fee, through the premium processing service, which guarantees a decision within a short time. Once the petition is filed, the H – 1B visa holder can continue working for their employer until a decision is made on the extension petition.

The new employer needs to file an H – 1B transfer petition for the worker. The new employer must meet the same requirements as any employer sponsoring an H – 1B visa. This includes having a valid job offer for the worker in a specialty occupation, demonstrating the ability to pay the prevailing wage for the position, and providing all the necessary documentation, such as a detailed job description, employer’s business registration documents, and financial statements.

The H – 1B visa holder must have been in the United States for a while. They also need to provide their existing H – 1B visa documentation, passport, and any relevant employment records to the new employer to support the transfer petition. Once the new employer files the transfer petition, the worker can start working for the new employer immediately, without waiting for the petition to be approved.

When a foreign worker wants to port their approved labor certification to a new job, they first need to determine if the new job is in the same or a similar occupational classification. This is usually determined by comparing the job duties, skills required, educational requirements, and the nature of the work between the old and new jobs. The USCIS uses the Occupational Information Network (O*NET) and other resources to make this determination.

The worker, along with their new employer (if applicable), then files the employment – based green card application. The application should include a copy of the approved labor certification, documentation showing the similarity of the new job to the job for which the labor certification was obtained, and all the other standard green card application forms and supporting documents, such as medical examinations, police certificates, and proof of relationship for dependents.

The ability of H – 1B visa holders to change employers more easily and the portability of labor certification in the green card process have given foreign workers more control over their careers. They are no longer tied to a single employer for the entire duration of their visa or green card application process. This increased mobility also benefits the U.S. labor market as it allows workers to move to jobs where they can be more productive and contribute more effectively.

The H – 1B visa extensions for those with pending green card applications provide much – needed relief from the long wait times associated with the green card process. This means that highly skilled workers can continue to work and live in the United States while waiting for their green card applications to be processed, rather than having to leave the country due to visa expiration.

By making the immigration process more flexible and worker – friendly, AC21 has helped the United States attract and retain highly skilled foreign workers. This is crucial for the U.S. economy, especially in industries that rely on specialized knowledge and skills, such as technology, engineering, and healthcare.

Despite its attempts to simplify the immigration process, some provisions of AC21 can be complex to interpret. For example, determining whether a new job is in the same or a similar occupational classification for the purpose of labor certification portability can be subjective. This can lead to confusion for both employers and employees, and in some cases, to denials of petitions by the USCIS.

Although AC21 introduced provisions to address long wait times, the USCIS still experiences significant processing delays in handling H – 1B visa extensions, transfer petitions, and green card applications. These delays can cause stress for both workers and employers, and may even put some workers’ immigration statuses at risk.

The U.S. immigration policy landscape is constantly changing. New administrations may introduce new regulations or interpretations that can impact the implementation of AC21. This uncertainty can make it difficult for foreign workers and employers to plan for the long – term.

AC21 immigration has had a profound impact on the U.S. immigration system, especially in relation to employment – based visas. It has provided much – needed flexibility and relief for H – 1B visa holders and foreign workers in the green card application process. By allowing for greater worker mobility, relieving long wait times, and attracting and retaining talent, AC21 has contributed to the competitiveness of the U.S. in the global economy. However, like any complex legislation, it also has its limitations and challenges, including complexity in interpretation, USCIS processing delays, and the impact of changing immigration policies. As the United States continues to navigate the global competition for talent, AC21 will likely remain an important part of the immigration toolkit, but it may also require further refinement and adaptation to better serve the needs of all stakeholders.

Related topics:

• What Is An Immigration Agent
• What Is Immigration In Population
• What Is Global Immigration