What Is AC21 H-1B Portability?
The American Competitiveness in the 21st Century Act (AC21) allows H-1B workers to change employers or take new job positions while:
- Maintaining lawful H-1B status
- Preserving their priority date and green card queue position
This is critically important for workers from India and China, who may wait 10ā20+ years for an employment-based immigrant visa number.
ā ļø Educational notice: This content is for informational purposes only and does not constitute legal advice. Consult a licensed immigration attorney for guidance specific to your situation.
AC21 Portability: The Key Requirements
| Requirement | Details |
|---|---|
| I-140 approval | Must be approved (not just filed) |
| I-485 pending for 180+ days | Adjustment of Status application pending ā„ 180 days |
| New job: same or similar | Must be in the same Standard Occupational Classification (SOC) group |
| No disqualifying event | No fraud, criminal, or immigration violation |
What "Same or Similar" Means in 2024+
USCIS's 2024 policy update clarified that "same or similar occupational classification" is determined by comparing SOC codes, not just job titles. Two positions are same or similar if:
- They share the same SOC code, or
- They are in a related SOC code at the same or higher skill level, and
- The duties are substantially comparable
Example: Moving from Software Engineer (SOC 15-1252) at Company A to Senior Software Engineer (SOC 15-1252) at Company B is clearly portable. Moving to an Engineering Manager (SOC 11-9041) may require a more detailed same-or-similar analysis.
H-1B Portability (No I-485 Pending)
Separate from AC21's green card portability, H-1B transfer portability allows a worker to start a new job as soon as a new employer files a non-frivolous H-1B transfer petition, even before USCIS approves it. Key requirements:
- The worker must be maintaining valid H-1B status
- The new petition must be filed before the current status expires
- The new employer must be a different, legitimate employer (not a controlled entity)
Priority Date Retention
Once an I-140 is approved, the priority date belongs to the beneficiary ā not the employer. Even if an employer withdraws a petition, the worker retains the priority date for future I-140 petitions under a new employer in the same or a comparable preference category.