AC21 FAQ: Porting and Self-Employment

Return to AC21 Issues Main Page

The following questions were submitted by a visitor to the forum. Since they are commonly asked, we have decided to present them here with answers.

Q: What are the risks associated with porting to self-employment and does USCIS scrutinize this more carefully?

A: In theory, there are no additional risks associated with self-employment. The USCIS has written in a policy memorandum that self-employment is acceptable under the AC21 legislation. To the extent that there is any "risk" it would involve the likelihood of additional scrutiny of the work actually being done by the applicant. As long as you work in "the same or similar occupational classification," however, you are safe.

Q: Should I notify USCIS that I've ported to self-employment?

A: My very strong recommendation is "no." The law does not require anyone to notify the USCIS that they  have changed employers. The USCIS has acknowledged in writing that no penalty will be imposed for failure to notify. The problem with notification is that typically it results in the applicant receiving a lengthy request for evidence containing demands for things the USCIS is simply not allowed to demand. For example, it is not unusual for them to ask for evidence that the new employer has had the ability to pay the offered salary since the day the PERM was filed. That information is wholly irrelevant, yet they continue to ask for it.

Q: Is changing attorney going to tip USCIS that I might've ported to self-employment?

A: In and of itself, changing attorneys is not a red flag concerning job porting.

Q:  Can I be without employment after 180 days have passed since my I-485 was filed, if I do/don't have an EAD?

A: You don't have to maintain continuous employment. You do have to maintain a legitimate, good faith job offer that will be effective as soon as you become a lawful permanent resident. The credibility of that job offer will be an important factor if you are not actually employed.

Q:  Do I need to incorporate, or can I remain an independent contractor/professional/freelancer? What is the exact title/designation that I need to use?

A: If you are self-employed, you do not have to incorporate or otherwise form a business entity. The only thing that matters is whether you continue to work in "the same or similar occupational classification" as that for which the underlying PERM was certified. You can work as a 1099 independent contractor if you wish. In the alternative, you can form your own company and receive pay through that company - your choice.

Q:  Should "I" incorporate, or better an associate, so that I'm an employee?

A:  It doesn't matter.

Q:  The answer to Question 8 of the Yates memo, Can an alien port to self-employment under INA ยง204(j)?, states: "Yes, as long as the requirements are met. [...] Second, it may be appropriate to confirm that the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues." What employer is the memo talking about, if I am self-employed? Will I write a letter of employment to myself?

A: The "employer" referenced is either the person you work for or yourself, if you are self-employed. If you are self-employed, they will want to see persuasive, credible evidence that you are actually working in the same or similar occupational classification and that there is a clear probability that you will have continuing work in this field.

Q:  I expect my new company/contracting will only slowly pick up speed, but I do have savings that will support me in the meantime, so I won't need any form of welfare. Does self-employment need to be productive, or just legitimate? Do I need a minimum revenue, number of contracts/clients etc.?

A: While you do not have to earn the same salary as that offered in the PERM, you do have to show that you will be able to work on a more or less full time basis and that you will earn enough to support yourself if you are going to port to self-employment.

Q:  What if I actually don't manage to get any clients and revenue for, say, a year, and then I get an RFE or my PD becomes current?

A: You need to be able to show that you are working in your field. While you don't have to be employed continuously, you do have to show that you will become employed immediately when you are given lawful permanent residence. If you can't establish this, even before your priority date becomes current, you run the risk of having your adjustment of status application denied.

Q: What if, on the contrary, my revenue is significantly more than what I am currently earning? Can then the adjudicating officer say that I have no intention/reason to work in your I-140 role after I'd get the Green Card? For example, I'm earning around 100k dollars now and my business brings in half a million a year. Why would I continue in the 100k role after the Green Card? Can they deny the case?

A: As long as you remain working in the same or similar occupational classification, there won't be a problem. You are allowed to rise vertically in your profession and remain eligible to adjust status.

Q: From your experience, what is the typical evidence necessary to successfully answer a RFE if I've ported to self-employment under AC21?
- Client testimonials? Contracts? Quotes, purchase orders, invoices? Tax returns?
- articles on incorporation, partnership, LLC etc.?
- a professional website? It has been claimed that "it's well known that USCIS officers start by doing Google and web searches for business details."

A: There is no "one size fits all" solution to this question. It really depends on the unique facts and circumstances of each case. At the end of the day, the USCIS will look at the evidence you are able to produce to show that you continue to work in the same or similar occupational classification. The emphasis here is on the work that you will be doing.

Q: In addition to RFEs, did any of your clients get audited?

A: There is no provision for an "audit" outside the context of a request for evidence.

Q: I've been self-employed for a while under AC21, and now my Priority Date has become current.
To received the Green Card, do I need a job offer from a US employer, or can I continue my self-employment?

A: You may continue to be self-employed or you can go back to being an employee. The key is continuing to work in the same or similar occupational classification.

Q: If I do need a job offer from a US employer, what evidence will I have to submit, and how will this happen, i.e. what will USCIS send before the actual green card, and how much time do I have to submit that evidence? The idea is that I may need to stop my self-employment and begin looking for a job offer from a US employer, which may take time and is risky.

A: You don't need a job offer from an employer - you may continue to work as a self-employed individual.