Q & A: I-140 Portability under AC-21: Same or Similar Job?

Question: I am a July 2007 filer with a Oct 2006 PD. My labor was filed as a Software Developer. Recently I got a job offer in a fortune 500 firm as a technical lead architect.  My labor certification (PERM) application was filed for the position of Electrical Engineer (SOC 17-2071.00).   My new position falls under the Computer Software Engineer (SOC 15-1031). My new employer said that he will not file under AC-21 and they will take appropriate action if I get an RFE. I want to know how strict the same similar job requirement is? Do you feel that taking a Lead Architect job with an Electrical Engineer labor cert would jeopardize my green card ?

Read our Answer after the jump.



Answer: Hello and thank you for your questions. I assume you mean to say that your new employer WILL NOT file notification with USCIS to confirm that you are porting your I-140 pursuant to AC-21; but they WILL respond to a request for evidence, if you get one. Let me know if I am missing something.

You should know that notifying USCIS is not required, so it is common for employers to not file any type of AC-21 notification with USCIS, and simply wait until an RFE is issued to address any concerns about the job. However, in my opinion, it is important to prepare the necessary AC-21 documentation, in anticipation of a possible request for evidence, now. Essentially, a record confirming you are eligible to port, including an analysis of relevant law and your positions.

This brings us to whether or not your positions are same or similar. Based on your explanation, I do have some concerns, since an Electrical Engineer and Software Engineer might NOT be considered same or similar, which could lead to a denial of your AOS.

Notably, you have only provided titles, so I cannot assess whether or not the jobs are same or similar. The only way to make the assessment is to compare the actual duties and responsibilities. If you can obtain the descriptions, I can help you make the comparisons. Please let me know if I can be of further assistance.

Best regards,
Michael Ryvin
Michael@ryvinlaw.com