American Competitiveness in the Twenty-First Century Act (AC21)
What is AC21?
American Competitiveness in the Twenty-First Century Act was signed into part of Immigration and Naturalization Act (INA) in year 2000 which significantly changed the H-1B program and the employment-based immigration program.
How Does AC21 Affect H-1B and Employment-Based Immigration Petitions?
The several key points in AC 21 are listed as follows:
- AC21 exempts H-1B workers from annual cap limitations who are to be employed by institutions of higher education; or their related or affiliated nonprofit entity; or other nonprofit or government research organization. However, if a H-1B worker transfers from an “exempt” employer to an employer that does not have an exemption, the worker will need to be counted against the annual cap.
- AC21 requires that H-1B workers will not be counted against the cap if they have had H-1B status in the past 6 years, unless the individual would be authorized for a new 6-year period of stay.
- An amended H-1B petition is no longer required when the petitioning employer undergoes a corporate restructuring, including but not limited to a merger, acquisition or consolidation, where the new corporate entity succeeds to the interest and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.
- AC21’s portability provisions allow a non-immigrant alien previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files an H-1B petition for the alien. Before AC21, H-1B workers in this situation had to await USCIS to approve the new employer’s H-1B petition before commencing the new H-1B employment.
- AC21 provides H-1B extensions in one-year increments to H-1B workers who have an employment-based immigrant petition or labor certification application filed more than 365 days since the visa petition or the labor certification application has been filed. It does not require that the labor certification application or employment-based petition to have been pending more than a year to have this benefit. The only requirement is that 365 days have passed since filing of the labor certification or employment-based immigrant visa petition.
- AC21 provides relief for beneficiaries of employment-based visa petitions by giving them the right to change jobs and or employers if their applications for adjustment of status have been pending for at least 180 days, provided the beneficiaries remain in “the same or similar occupational classification” of the job where their immigration petition was based.