A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Wednesday, November 3, 2010

USCIS Clarifies the AC21 “Same or Similar” Employment Portability Provisions

The USCIS’s Administrative Appeal Office (AAO) recently designated a decision as precedent regarding an important AC21 portability provision. The decision clarifies that in order for a foreigner to lawfully change jobs after his or her green card case has been pending for 180 days, the initial employment-based immigrant visa petition must be “valid” and approved. The decision is important as it affects foreign workers’ ability to find new jobs during the usually lengthy green card application process.

Background of the AC21 106(c) Provision

Due to the immigrant visa quota system, only about 140,000 immigrant visa numbers are authorized by Congress for employment-based immigration every year. As there are more applications than the number of available visas, a backlog situation is created. Foreigners oftentimes need to wait for many years before a visa number is available for use. In order to alleviate the hardship caused by visa backlog, Congress in 2000 passed the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). One of the AC21 provisions, section 106(c), allows a foreign worker to change employment if his green card application has been pending for more than 180 days and remains unadjudicated. There are several requirements for this portability provisions. First, the initial immigrant visa must be valid; second, the green card application or I-485 must have been pending for 180 days; finally, the new job must be in the same or similar job classification. The USCIS has allowed an unapproved I-140 visa petition to be valid as long as it was “approvable” within the 180 day period. Many foreign workers have taken advantage of this provision to change employment.

New USCIS Decision

Recently, the AAO issued a decision that further restricts the application of section 106(c). Specifically, in Matter of Al Wazzan, decided on October 21, 2010, the USCIS held that in order for an applicant to port to a new job based on AC21 section 106(c), the foreign worker must have been eligible for the immigrant visa initially filed, and it must have been approved by the USCIS under the law. The applicant in Al Wazzan filed two I-140 visa petitions, both of which have been denied by the USCIS. The applicant argued on appeal that once 180 days had passed, the USCIS could on longer deny the I-140 petition under AC21. The AAO disagreed, after reviewing the statutory framework in detail. The AAO explained that in order for an immigrant visa to remain valid, it must have been valid to begin with. Therefore, a visa petition that was ultimately denied cannot be considered valid. Under this interpretation, the applicant in Al Wazzan was not entitled to AC21 benefits.

Conclusion

This AAO decision is significant in several ways. First of all, the AAO is taking the opportunity to assert its authority by issuing a precedent decision. A precedent decision is one that has binding authority, meaning that it must be followed by all USCIS personnel. Secondly, it changed the rules as to how a foreign worker may change employment after a green card application has been pending for 6 months or longer. Although the “approvable at the time of filing” standard may still apply, a wise applicant should probably wait until his or her visa petition has been approved before changing jobs.

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