Administrative Courts Rule on AC21 Portability

By Attorneys Robert L. Reeves and Elsie Hui Arias

As previously discussed in our column, immigrant workers can move (or “port”) to a new employer during the adjustment of status process under the American Competitiveness in the 21st Century Act (“AC21”) which Congress passed in October 2000. However, the practical application of this law continues to be interpreted by the U.S. Citizenship and Immigration Services (USCIS). Two administrative courts have recently restricted the conditions under which immigrant workers can port to a new employer while preserving their employment-based applications for adjustment of status.

The USCIS recently announced that it is adopting a precedent decision from the Administrative Appeals Office (AAO) that holds that I-140 visa petitions must be approved before an immigrant worker can port to a new employer for a job offer in the “same or similar occupational classification.” While the USCIS states that this new policy conforms to its interpretation of AC21 in a memo issued by William Yates in May 2005, it actually appears that the USCIS is retreating from its more generous application of AC21 portability.

In the May 2005 memorandum the USCIS stated that an immigrant worker could move to a new employer where the immigrant visa and adjustment of status applications had been pending for more than 180 days, even if the immigrant visa had not been approved, where the petition was “otherwise approvable.” If the USCIS could not determine if the immigrant visa petition was approvable based on the initial filing, the USCIS should then issue a request for evidence to which the original employer must respond satisfactorily. The May 2005 memorandum further provided that if the only issue in the immigrant visa petition was the employer’s “ability to pay” the proffered wage, the immigrant visa should still be approved.

Most immigrants obtaining permanent residency through an employer must undergo a three-step process: labor certification, immigrant visa petition (“I-140 visa”), and adjustment of status. The labor certification must be approved by the Department of Labor before filing the immigrant visa petition and adjustment application with the USCIS. To address the former INS’s inordinate delays in processing adjustment applications and provide immigrant workers with job flexibility, Congress passed AC21 to permit these workers to move to a new employer if they had a “valid” immigrant visa petition and their adjustment applications had been pending for at least 180 days.

Prior to the passage of AC21, I-140 visa petitions had to be approved before immigrant workers could file for adjustment. However, when the USCIS began accepting concurrent I-140 visa/adjustment filings in July 2002 and I-140 visas were unadjudicated within 180 days of filing, the question of whether the I-140 visa had to be approved before an immigrant worker could port to a new employer arose as a critical unanswered question. With the recent AAO decision and the USCIS’s announcement of adopting this decision as policy, it is now established that the I-140 visa must be approved before an immigrant worker can change employers.

The Board of Immigration Appeals (BIA), which primarily hears appeals arising from immigration court proceedings (removal/deportation), also recently issued a related decision on AC21 applicability. In In re Perez Vargas, the BIA held that an immigration judge lacks authority to determine the validity of an immigrant worker’s approved employment-based visa petition for AC21 portability purposes. In this case, the respondent had an approved I-140 visa petition and was attempting to adjust his status in immigration court through a new employer-sponsor. The BIA determined that an immigration judge does not have authority to determine whether an alien respondent can port to a new employer for purposes of adjusting his status because the federal regulations specifically only confer jurisdiction over such matters to the USCIS.

Obtaining employment-based permanent residency has become increasingly more difficult and complex. Employers or individuals seeking assistance with such matters should consult with knowledgeable and experienced immigration attorneys.