EDIT: AC21 is for those who are applying for a green card (I-485 pending). How the heck is AC21 even connected to H1B? Source/link please?
EDIT2: H1B transfer does not seem to involve AC21. All that happens is that the new employer will need to apply for a H1B petition all over again. So you are simply tied to the new employer, instead of your old employer.
AC21 is not free, there are legal fees and processing times involved. There is a non-zero cost involved. If this cost did not exist, if an employee could just switch jobs WITHOUT needing the receiving company to do anything, then obviously there would be no wage suppression. Employee can ask for a raise, and simply leave if refused.
>The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the U.S. Department of Labor's PERM system for labor certification erased most of the earlier claimed arguments for H-1Bs as indentured servants during the green card process. With PERM, labor certification processing time is now approximately 9 months (as of Mar 2010).[33]
>Because of AC21, the H-1B employee is free to change jobs if they have an I-485 application pending for six months and an approved I-140, and if the position they move to is substantially comparable to their current position. In some cases, if those labor certifications are withdrawn and replaced with PERM applications, processing times improve, but the person also loses their favorable priority date. In those cases, employers' incentive to attempt to lock in H-1B employees to a job by offering a green card is reduced, because the employer bears the high legal costs and fees associated with labor certification and I-140 processing, but the H-1B employee is still free to change jobs.
>However, many people are ineligible to file I-485 at the current time due to the widespread retrogression in priority dates. Thus, they may well still be stuck with their sponsoring employer for many years. There are also many old labor certification cases pending under pre-PERM rules.
> if they have an I-485 application pending for six months and an approved I-140
That is related to a green card. And yes, employers typically try to file your I-140 under EB-3. This means that you need to wait 10+ years before your priority date becomes current. Once the PD is current, you can file your I-485. After another 6 months elapse, ONLY THEN can you invoke AC21. In effect, the employee is tied to the employer for 10+ years since companies only file for your green card after you spend ~6 years on H1B. The decision of EB-3 vs EB-2 (about 5 years shorter) lies with the employer. These two categories of green card cannot be self petitioned, only an employer can do it.
EDIT: So to summarize, the employee usually is first locked in during the 6 years on H1B, with the hope that the employer will apply for a green card (i.e. file the I-140).
Then, the employee is locked in for another 10 years, waiting for the PD to become current. And then, after 6 more months, the employee is finally free to change employers.
I don't understand how this isn't indentured servitude.
My understanding was that while you wait your priority date to become current, you are not locked to your current employer. I think this was one of things that AC21 fixed. There is a 180-day period following your I-140 approval during which you are locked to the employer that filed your I-140, but after that you are free to switch to another employer, as long as your new position will be substantially similar to the one for which the I-140 was filed. Changing employers after 180 days have elapsed should not affect the underlying approved I-140.
I've tried sift through the legalese of AC21 and discern as much as I can, and this is my understanding. I might be wrong. Here's the full text of the Act: https://www.govtrack.us/congress/bills/106/s2045/text It's fairly short. I just wish they hyperlinked the references to other laws and acts.
> Changing employers after 180 days have elapsed should not affect the underlying approved I-140.
Employers can actually withdraw the I-140 if you switch jobs BEFORE filing I-485 and letting 6 months elapse - and then you have to start all over again.
The I-485 AC21 provision is not related to the H1B other than most people affected by it also have H1Bs. However the H1B is pretty portable in practice: even though there is no formal grace period, practically, you have about 3 months to find a job and just do an easy transfer (you get a new I-90) and if it takes more then you might need to leave the country to get a new H1B stamped and receive a new I-90 at the border.
Also, the AC21, I believe, allows to start working on H1B as soon as you've filed a reasonable H1B app (provided you are already in the country legally, of course, so it applies mostly to the COS/AOS process).
Source: I had been laid of on H1B twice, one time I started working on the new company immediately after filing the new H1B, the other time I had to wait ~3 months for the application to pass through.
> AC21 is not free, there are legal fees and processing times involved. There is a non-zero cost involved. If this cost did not exist, if an employee could just switch jobs WITHOUT needing the receiving company to do anything, then obviously there would be no wage suppression. Employee can ask for a raise, and simply leave if refused.
In the tech industry, most companies are willing to do an H1B transfer. The cost of doing it is small compared to what they'll be paying you. You can start working right away, as AC21 states that you don't have to wait for USCIS to process and approve the petition before starting work. (A caveat to this is that if USCIS denies your company's petition for you, then you'll effectively be deported. This is unlikely though, if you work for a reputable company.)
EDIT2: H1B transfer does not seem to involve AC21. All that happens is that the new employer will need to apply for a H1B petition all over again. So you are simply tied to the new employer, instead of your old employer.
http://www.immihelp.com/visas/h1b/h1-transfer.html
AC21 is not free, there are legal fees and processing times involved. There is a non-zero cost involved. If this cost did not exist, if an employee could just switch jobs WITHOUT needing the receiving company to do anything, then obviously there would be no wage suppression. Employee can ask for a raise, and simply leave if refused.