8/2/2010

A Deniable Petition Cannot Serve As A Basis For Approval For An Adjustment of Status to Permanent Residence Under the Portability Provision of INA § 204(j)

In January 2005, the AAO determined whether or not the American Competitiveness Act in the Twenty-First Century Act (AC21), passed by Congress in 2000, amended the INA to allow the approval of adjustment of status to permanent residence applications merely because an application for adjustment of status pursuant to section 245 had been filed and remained unadjudicated for over 180 days. 

The AAO looked closely at the statutory scheme for adjustment of status both before and after enactment of AC21, as well as the statutory language and Congressional intent, and determined that a petition must be valid, and not deniable, for approval of the adjustment of status application even if the  adjustment remained unadjudicated over 180 days. The AAO found the initial petition filed by the applicant in the present matter was not valid for the purposes of AC21 and new job offer alone could not support the support the adjustment of status application even though the application remained unadjudicated for over 180 days.

In the present matter, the petitioner filed an employment based immigrant petition on behalf of an alien who was not entitled to the classification, but claimed entitlement based a new job offer citing section 204(j) of the INA. The applicant in the matter sought to adjust status despite never having shown eligibility for the immigrant visa classification sought. The USCIS denied Form I-140 petitions filed by employers on behalf of the applicant on two separate occasions. The applicant, despite the USCIS director’s denial of the visa petition filed by the applicant’s actual employer, claimed he was entitled to adjustment of status based on a new employment offer under section 204 of the INA amended by AC21 section 106(c) which allows job flexibility for long delayed applicants if the new job is in the same or similar occupation classification for which the petition was filed.

To decide this issue, the AAO first looked at the regulations for applications for permanent residence based on employment at the time of enactment of AC21 and noted three procedural steps. First, the alien obtains approval for an employee-based immigrant petition. Secondly, the alien files an application to adjust status, and finally, if the adjustment application remains unadjudicated after 180 days, the underlying visa petition remains valid even if the alien changed employers or positions so long as the new job was the same or similar to the occupational classification. 

AC21 works in tandem with section 245 of the INA which requires that the adjustment applicant to have an "approved" immigrant visa petition.  The AAO pointed out that the problematic issues at hand result from the concurrent filing process implemented by the USCIS in 2002 for the convenience of aliens and their employers.  The concurrent filing process allows the employer-petitioner and alien-beneficiary to file the I-140 immigrant petition and the I-485 adjustment of status application concurrently. However, at the time AC21 was enacted, only family based preference cases could be filed concurrently.  Therefore, no alien under the employment based category could assert that a petition was valid through the passage of 180 days at that time because the process required that the immigrant petition be approved before filing the I-485 for adjustment. Thus, the AAO reasoned that the scheme implemented by Congress regulating the immigrant visas in threefold process cannot be undone simply because the scheme requires more than 180 days to effectuate.

The AAO then looked at the statutory language and committee reports to determine Congressional intent for passing AC21 and to decide if adjustment of status applications pending for over 180 days should be automatically approved. The operative language with respect to the issue in question can be found in section 106(c) of AC21 which states that “A petition…shall remain valid with respect to a new job if the individual changes jobs or employers…” Counsel for the applicant argued that Congress enacted AC21 to reduce backlogs of adjustment of status applications and to improve the affects that these backlogs have on applicants.  

Since the AAO found no legislative history that supported this argument, and discovered the committee reports specifically addressed immigrant visa petitions and not adjustment of status applications, the argument for the applicant was unpersuasive.  Instead, the AAO put more weight on the ordinary meaning of the word “valid” which must be interpreted using its ordinary meaning and not by attempting to effect legislative intent. The ordinary meaning of “valid” is “well-grounded” or “legally sound or effective” and does not include denied or unadjudicated petitions as applicant’s Counsel suggested. Contrary to Counsel’s argument, an application is not made “valid” simply through the act of filing and the passage of 180 days without adjudication.

As for the portability issues arising under section 204(j) of the INA which provides that a petition remains valid with respect to a new job if the individual’s application for adjustment of status has been filed and remained unadjudicated for 180 days, the petition must be valid to begin with if it is to be valid with respect to the a new job. In the instant case, the petition was not valid to begin with so the USCIS decision to deny the adjustment of status application was affirmed.