Board of Immigration Appeals holds that Immigration Judges Have Authority to Make AC-21 Portability Determinations for Individuals in Removal Proceedings

The American Competitiveness in the Twenty-First Century Act, (AC21) provides that an approved I-140 petition for employment based green card would remain valid even when an alien changes jobs, if: • Employment based Adjustment of Status I-485 has been filed and remained unadjudicated (pending) for 180 days or more; and • the new job is in the same or similar occupational classification as the job for which the certification or approval was initially made. If an alien has complied with the above statutory requirements, adjudicators shall not deny applications for adjustment of status on the basis that the alien has changed jobs. Typically the alien complies with AC21 by submitting to USCIS a letter of employment from the new employer. The letter from the new employer would verify that the job offer exists and should contain the new job title, job description and salary. This information is necessary to determine whether the new job is in the same or similar occupation and to determine whether the alien is admissible under the public charge ground of inadmissibility. What exactly ‘similar’ means is not very clear and it is subjective. To determine whether a new job is in the same or similar occupational classification as the original job for which the certification or approval was initially made, consultation could be made of the Department of Labor’s Dictionary of Occupational Titles or its online O*NET classification system or similar publications. However, these sources are somewhat vague in defining jobs, especially so in the IT industry. The DOT is quite outdated and it contains no definitions for many IT jobs. The 180 days starts from the receipt date of I-485 and not the notice date. In other words, the date when USCIS receives the I-485, and not the date when they printed a receipt. The AC 21 rule states that the green card application would remain valid if the applicant changes employer after 180 days of the I-485. When the I-485 is filed concurrently with I-140 and it has been more than 6 months since I-140 is pending, and if the employee changes the employer, as long as the 1-140 gets eventually approved, the applicant can still utilize AC 21. If an I-140 is withdrawn or revoked before 180 days, then the 1-140 petition is no longer valid and cannot be ported to a new employer even after 180 days under AC 21 rule. If an I-140 petition is withdrawn after 180 days/ the employee can still utilize AC 21. The new job does not have to be in the same geographic area but can be anywhere in the US. As long as the wages in the new job are at par with job duties and self-supporting that you will not become a “public charge”, and as long as the new job duties are similar to the original job, the new employer does not have to pay the wages listed in the original labor certification or even the prevailing wages. Wages can be more or less. Wages depend upon a lot of factors such as the job location, company benefits, bonus, current economy etc. Of course, if the wages are so different, USCIS may consider that two jobs are no longer similar and it may potentially create a problem. Individuals should consider utilizing AC 21 provisions if • the job location changes to a different geographical location as the original labor certification was for a particular job location. • the job duties changes as long as new job duties are similar to previous job duties. • the salary changes, increases or decreases. When utilizing AC 21 provisions, the priority date does not have to be current, as long as all other conditions are met as described above. Individuals not in Court Proceedings typically invoke AC-21 by sending a letter from the new employer to the USCIS Service Center with jurisdiction over the I-485 Application. For individuals in Immigration Court Removal Proceedings, immediately following the enactment of AC-21, Immigration Judges would make the decision whether or not an individual seeking to invoke the benefits of AC-21 in Removal Proceedings would be eligible for relief from Removal Proceedings in the form of Adjustment of Status upon presentation of a letter from a new employer. In other words, the Immigration Judge could decide whether an individual who had an approved I-140 and I-485 pending for more than 6 months and wanted to change employers, met the requirements of a “same or similar” occupation. In Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), the Board of Immigration Appeals took this authority away from Immigration Judges, holding that the “same or similar” occupation determination had to be made by an Immigration Judge. In a positive development, the Board of Immigration Appeals has reversed its position on this matter. In Matter of Marcal Neto, Interim Decision #3669, 25 I&N Dec. 169 (BIA 2010) the Board of Immigration Appeals held that Immigration Judges have authority to determine whether the validity of an alien’s approved employment-based visa petition is preserved under section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j) (2006), after the alien’s change in jobs or employers. Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), overruled.

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