What Is AC21 Portability?
AC21 portability allows an employee to change employers or job roles without losing their green card priority date, provided their I-140 is approved and their I-485 has been pending for at least 180 days. The new role must be in the same or similar occupational classification. This rule applies whether the change is internal, a promotion, or a move to a different company.
A Quick Glossary Before We Get Into It
If you are newer to managing immigration, here is what the abbreviations in this article mean. If you have been doing this for years, feel free to skip ahead.
AC21 stands for the American Competitiveness in the Twenty-First Century Act, a law passed in 2000. It created the portability rule described in this article and also gave H-1B workers the ability to extend their visa beyond six years while waiting in the green card backlog.
PERM (Program Electronic Review Management) is the first step in the employer-sponsored green card process for most categories. It is a Department of Labor audit that certifies no qualified US workers were available for the role. It can take one to three years in normal processing times.
I-140 (Immigrant Petition for Alien Workers) is the petition your company files with USCIS after PERM is approved. It establishes the employee's eligibility and, critically, their priority date (essentially their place in line for a green card). Approval of the I-140 is a major milestone.
Priority date is the date your company filed the PERM application. It functions like a queue number. Employees from countries with high demand, particularly India and China, may wait 10 or more years for their priority date to become current, even with an approved I-140.
I-485 (Application to Register Permanent Residence) is the final stage. The employee files this to actually become a permanent resident. They can only file when their priority date is current and a visa number is available. For most Indian and Chinese nationals in EB-2 or EB-3, this wait can be many years after I-140 approval.
Adjustment of status refers to the process of changing from a temporary visa to a green card while remaining inside the United States. Filing the I-485 is the formal start of this process.
Executive Summary
- The problem: HR teams sponsoring green cards often don't know that sponsored employees can change roles or leave after 180 days without losing their place in line. This leads to blocked promotions, frustrated employees, and unnecessary turnover.
- What the law allows: Once the I-140 is approved and the I-485 has been pending 180+ days, employees can port to a same or similar role at the same or a different employer without restarting the green card process.
- Who this affects most: Employees from India and China face green card backlogs of 10 or more years in the EB-2 and EB-3 categories. Many of these employees will be well past the 180-day portability threshold long before their green card is approved. For HR teams at tech companies with significant Indian and Chinese national workforces, this rule comes up constantly.
- HR's role: Understand where each sponsored employee stands in the process, communicate AC21 accurately, and involve immigration counsel before any role change for an employee in the adjustment of status stage.
The Background
AC21 was passed in 2000 to solve a specific problem: employees in multi-year green card backlogs were effectively locked to their employer, unable to take promotions or leave without losing years of progress. The law created a portability right that kicks in once the adjustment of status process has been underway for 180 days.
For HR teams managing Indian and Chinese nationals in EB-2 or EB-3, this is especially relevant:
- An employee who started PERM five years ago may be well past the 180-day threshold and fully eligible to port.
- That same employee may be up for an internal promotion that would change their title and duties.
- Without a clear understanding of AC21, HR often blocks that promotion unnecessarily, or the employee leaves because they feel locked in.
The Two Conditions That Must Be Met
AC21 portability applies when both of the following are true at the time of the job change:
Both conditions must be satisfied at the same time. An approved I-140 alone is not enough. The I-485 must have been filed and pending for at least 180 days.
Important for employees in the Indian or Chinese backlog: Many employees have an approved I-140 but have not yet been able to file an I-485, because their priority date is not current. In that situation:
- AC21 portability does not yet apply.
- The 180-day clock does not start until the I-485 is actually filed.
- Your immigration counsel can confirm exactly where each employee stands.
What Happens Before the 180-Day Mark
If a sponsored employee changes roles or leaves before the I-485 has been pending for 180 days, the standard AC21 protections do not apply. The risks include:
- The employer may need to restart PERM entirely.
- The I-485 could be denied if the role change is significant and occurs shortly after filing.
There is also a good-faith intent requirement that runs through the entire sponsorship process. Both the employer and the employee must have genuinely intended to maintain the sponsored employment arrangement at the time of PERM filing and I-140 approval. If an employee files the I-485 and leaves immediately, USCIS can raise questions about whether that intent was real.
Early role changes are not always impossible, but they require immediate attorney involvement and careful evaluation before anything is finalized.
What "Same or Similar" Means
The new role must be in the same occupational classification or a similar one. USCIS evaluates this based on the totality of the circumstances. The factors they consider include:
- Job duties
- Required skills and experience level
- SOC (Standard Occupational Classification) code
- Salary
- Whether the role represents a natural career progression from the sponsored position
A software engineer moving to a senior software engineering role is typically same or similar. A software engineer moving into product management or people operations may or may not qualify, depending on how the duties overlap.
HR does not make this determination. Your immigration attorney compares the job descriptions and advises on whether the change qualifies. Your responsibility is to provide accurate, complete job descriptions for both the original sponsored role and the proposed new one before any offer is made.
What This Means for Internal Promotions and Transfers
This is where most HR teams run into trouble. When a sponsored employee is up for a promotion or transfer, HR sometimes delays or blocks the change, assuming any modification will derail the green card. That assumption is often wrong.
If the employee meets the two AC21 conditions and the new role is same or similar:
- The promotion can proceed without affecting their priority date.
- The original I-140 remains valid as the basis for portability.
- The company does not need to restart the PERM process.
What HR should do before any internal role change for a sponsored employee:
- Confirm whether the employee has an approved I-140 and whether the I-485 has been pending 180+ days (your immigration attorney or HRIS can verify this)
- Flag the proposed role change to counsel before making any offer or issuing any offer letter
- Provide complete job descriptions for both the current role and the new one for a same or similar analysis
- Proceed only after counsel confirms that portability applies
What This Means When an Employee Wants to Leave
Under AC21, once the I-485 has been pending for 180 days, an employee can leave and port their green card to a new employer in the same or similar role. The I-140 your company filed can remain valid as the basis for their portability even after their departure.
A few important points here:
- Employers can withdraw an I-140 at any time.
- However, if the I-140 has been approved for 180+ days or the I-485 has been pending for 180+ days, that withdrawal generally does not invalidate the employee's portability rights, assuming no fraud or misrepresentation.
- USCIS will typically still honor the I-140 for portability purposes after withdrawal once those thresholds are met.
HR teams that assume I-140 withdrawal can be used as a retention tool after the 180-day threshold are working from an outdated understanding of the law.
Compliance Rules vs. Strategic Best Practices
Strict compliance requirements:
- Do not assume withdrawal of the I-140 will block portability once the 180-day threshold has been met. Once portability applies, USCIS generally honors it regardless of withdrawal.
- Any internal role change for an employee in the adjustment of status process must be reviewed by immigration counsel before it is finalized. Duty changes that are not the same or similar can put the green card at risk.
- Do not issue an offer letter for a transfer or promotion to a sponsored employee without attorney confirmation that portability applies.
- Both the employer and employee must have had genuine, good-faith intent to maintain the sponsored role at the time of PERM filing and I-140 approval.
Strategic best practices:
- Track the I-140 approval date and I-485 filing date for every sponsored employee in your HRIS. Flag when each employee passes the 180-day threshold, so you have accurate information for HR planning.
- Brief your talent acquisition and people operations teams annually on AC21. Misconceptions about green card lock-in lead to blocked promotions and preventable departures.
- When an employee raises AC21 as a reason they want to leave, treat it as a retention conversation. Understand what they are looking for internally and whether a similar path is available before they go to market.
Frequently Asked Questions
Can we promote an employee who is in the green card process?
Yes, in most cases, if they meet the AC21 conditions and the new role is in the same or a similar occupational classification. Have your immigration attorney compare the job descriptions before making any offer. If the 180-day threshold has not been reached, a premature role change may require restarting PERM.
What happens to our I-140 if the employee leaves?
If the 180-day threshold has been met, withdrawal of the I-140 generally does not invalidate the employee's portability rights. If the I-485 has been pending less than 180 days, withdrawal can affect the pending application. The exact impact depends on the timing and circumstances, so involve counsel before any withdrawal decision.
Can we add Premium Processing to the I-485 petition?
No. USCIS does not offer premium processing for the I-485. There is no way to pay to expedite the adjustment of status application itself. Premium processing (Form I-907) is available for certain other petition types, including the I-140. If your goal is to accelerate the overall green card timeline, your immigration counsel can advise on whether premium processing at the I-140 stage or other strategies apply to your situation.
Does AC21 portability apply to H-1B holders who are not yet at the I-485 stage?
AC21 includes a separate provision allowing H-1B holders to extend their visa beyond the normal six-year cap if they have an approved I-140 or have been waiting 365+ days for labor certification. This is a different AC21 benefit from the I-485 portability rule. Both exist under the same law but apply at different stages of the process.
What if the employee changes roles before the I-485 is filed?
AC21 portability does not apply until the I-485 has been pending for 180 days. A role change before that point, particularly one that significantly alters the duties of the sponsored position, may require restarting PERM or could jeopardize an I-485 filed shortly after. Contact immigration counsel immediately if a role change is being considered for an employee who has not yet reached the 180-day threshold.
Key Takeaway
AC21 portability is not a loophole. It is a legal protection that has been in place since 2000, and it affects how you handle promotions, transfers, and departures for any employee in the adjustment of status process.
The conditions to know: approved I-140, 180+ days of pending I-485. Before that point, proceed with caution and attorney involvement. After that point, the same or similar role changes can typically move forward without restarting the green card process.
Platforms like WayLit provide ongoing immigration tracking and support for HR teams managing sponsored employees at scale, so you always know where each employee stands before you make a people decision that intersects with their green card timeline.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Immigration rules change frequently. Consult with a qualified immigration attorney for guidance on specific employee cases.
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