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"A Moveable Feast": New and Old Portability under AC21 105 (Part X)
by Angelo A. Paparelli and Janet J. Lee


Effective Date; Retroactivity

Finally, 105 provides that the portability provision "shall apply to petitions filed before, on, or after the date of enactment of this Act."136 In the 1/01 Pearson Memo, the INS notes that "all aliens who meet the requirements [of 105 portability] may benefit from the provisions effective immediately."137 While recognizing that all aliens satisfying the eligibility requirements under the portability provision may assert this benefit, the INS did not explain the breadth of the retroactivity provision, but did acknowledge that the portability provision applies to H-1B petitions filed "before, on, or after the date of enactment." To ascertain the potential reach of this provision, it is important to examine recent judicial pronouncements. Retroactive application of federal immigration legislation has repeatedly been upheld by the courts.138 Although Congress has unfettered power over the admission or expulsion of aliens, the U.S. Supreme Court has recognized that retroactive application of legislation may raise due process concerns.139 As a result, the retroactive application of an immigration statute must be rationally related to a legitimate governmental purpose to satisfy due process requirements.140

In a recent unpublished decision, a federal appellate court addressed the effect of a retroactivity provision in an amendment to the INA granting the INS discretion to waive the oath and attachment requirements for naturalization with respect to disabled individuals "before, on, or after the date of enactment of this Act."141 This case involved an individual who was unable to demonstrate that he was attached to the principles of the Constitution, understood the oath of allegiance or willing to take an oath because he suffered from Downs Syndrome. In November 1999, the INS issued the alien a certificate of citizenship in accordance with a judge's order. While the INS' appeal was pending, Congress amended the INA granting the INS discretion to provide a waiver. The Tenth Circuit Court of Appeals denied the INS' request to vacate the judge's decision based on the legislative development. The INS had taken the position that the alien was eligible for the waiver, but that he should be required to reapply in order to obtain it. According to the Court, the INS' determination of the alien's eligibility was sufficient to allow the waiver as to the application which was presented to the judge.142 If the retroactivity provision of AC21 were to apply in the same manner, 105 portability should "purge" unauthorized employment in situations where employers and workers "jumped the gun" by starting employment after the filing but before the approval of an H-1B change of employer.

Federal courts also have partially invalidated the retroactive application of provisions contained in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)143 related to relief under former INA 212(c).144 The AEDPA significantly restricted the availability of discretionary relief from deportation by providing that aliens who were deportable because of convictions based on certain criminal offenses were not eligible for a 212(c) waiver, even if the offense occurred before the enactment of the AEDPA.145 The application of this statute has been subject to repeated challenges, and courts have generally taken a restrictive approach.146 One court, for example, concluded that 440(d) may not apply to an alien who pleaded guilty to a criminal offense that occurred before enactment but was covered by the statute.147 According to the court, if the alien could show that he entered into his guilty plea in reliance of the state of the law before the enactment of the AEDPA, the statute may not apply to his case.148

The underlying concern in these cases appears to be that retroactive application of the statute may violate the principle of fundamental fairness. AC21 would not create the same issues, however, given that the statute is designed to confer greater benefits to workers and employers. In that respect, the retroactive application of the H-1B portability provision would likely provide significant relief. For example, the retroactivity provision could cure a prior violation of status and allow an individual to be eligible for adjustment of status. Previously, if an H-1B worker had begun new employment before obtaining an approved I-129,149 he or she would have engaged in unauthorized employment, which could prevent the worker from applying for an adjustment of status.

From the employer's perspective, one wonders whether employers who were fined for premature hiring or for paperwork violations150 may be eligible to claim a refund and correction of the record. The retroactive application of AC21 provides a legal basis for seeking a refund from these fines. To take this reasoning one step further, if an employer has been incarcerated for felony harboring, may he or she seek release from prison?151 Unlike the AEDPA, retroactive application of this provision appears to have the potential of conferring greater benefits than had previously existed. Thus, there would not be an issue of a violation of fundamental fairness. A case involving imprisonment of an employer based on unauthorized employment covered by the portability provision may be rare, but the bottom line is that this retroactivity provision should be applied liberally. One never knows when it will result in a significant benefit for both the employer and employee.

136 AC 21 105(b).
137 See 1/01 Pearson Memo, supra note 62.
138 Lehman v. United States, 353 U.S. 685 (1957) (allowing deportation based on conviction that, because of conditional pardon, were not grounds for deportation when they occurred); Marcello v. Bonds, 349 U.S. 302 (1955) (allowing deportation based on conviction that was not grounds for deportation when it occurred).
139 Landgraf v. USI Film Products, 511 U.S. 244 (1994).
140 Hamama v. INS, 78 F.3d 233 (6th Cir. 1996).
141 Galvez-Letona v. Kirkpatrick, No. 99-4195, 2001 U.S. App. LEXIS 1515 (10th Cir. Feb. 2, 2001). The amendment was signed into law on November 6, 2000, and amends INA 337(a). Pub. L. 106-448, 114 Stat. 1939.
142 Galvez-Letona, 2001 U.S. App. LEXIS 1515 at *8.
143 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214.
144 Until April 1, 1997, INA 212(c) provided that aliens who were lawfully admitted for permanent residence, who temporarily proceeded abroad voluntarily and not under an order of deportation, and who were returning to a lawful unrelinquished domicile in the United States of seven consecutive years, could be admitted to the United States at the discretion of the Attorney General.
145 AEDPA 440(d) includes convictions for such offenses as aggravated felonies, controlled substance offenses, certain firearms offenses, espionage, and multiple crimes of moral turpitude.
146 See, e.g., Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998); Henderson v. INS, 157 F.3d 106 (2d Cir. 1998); Sandoval v. Reno, 166 F. 3d 225 (3d Cir. 1999); Tasios v. Reno, 204 F.3d 544 (4th Cir. 2000); Pak v. Reno, 196 F.3d 666 (6th Cir. 1999); Shah v. Reno, 184 F.3d 719 (8th Cir. 1999); Mayers v. INS, 175 F.3d 1289 (11th Cir. 1999).
147 Magano-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999).
148 Id.
149 In potentially curing unauthorized employment in situations where the individual "jumped the gun," perhaps this is another example of portability - Congress just said so.
150 INA 274A(e)(4) provides that an individual or entity found to have employed an unauthorized alien is subject to fines ranging from $250 to $10,000.
151 INA 273 provides fines and imprisonment for any person who knowingly or in reckless disregard of the alien's unlawful stay in the United States conceals, harbors, or shields from detection, such an alien.

About The Author

Angelo A. Paparelli ( has been practicing business-sponsored immigration law for over 20 years, and is the managing partner of Paparelli & Partners LLP in Irvine, California. He is a nationally recognized speaker, published author and leading expert on cutting-edge business-related immigration issues, including the immigration consequences of mergers, acquisitions, reorganizations and other business changes, consular visa practice, audits of employers' compliance with immigration and labor regulations, and employment-based work visas. Mr. Paparelli is certified as a Specialist in Immigration and Nationality Law by the State Bar of California, Board of Legal Specialization.

Janet J. Lee is an associate at Paparelli & Partners LLP. Ms. Lee is admitted to practice law in the State of California. Before joining the firm she served as Executive Editor of The Labor Letters, Inc. from 1997 to 2000. She can be reached at