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"A Moveable Feast": An Analysis of Adjustment of Status Portability Under AC21 (Part I)
by Angelo A. Paparelli and Janet J. Lee

Biography

In this second leg of our journey into the new world of portability under the American Competitiveness in the Twenty-first Century Act ("AC21"),1 we discuss a variety of issues raised by the newly created statutory provision authorizing adjustment of status ("AOS") portability. Continuing the theme introduced in our discussion of H-1B portability,2 this article explores the ways in which AOS portability enables new possibilities in recruiting and hiring foreign workers.

As the spirit that prompted the enactment of AC21 just a few short months ago may now appear anachronistic in the current climate of layoffs,3 AOS portability takes on another dimension. With the economy growing less stable, employees have become more concerned about job security than job mobility. Yet employees and some employers may still benefit from AOS portability. Under the new law, a worker may be able to change jobs without jeopardizing a pending AOS application, while the hiring employer may avoid the cost of sponsoring the worker's green-card processing.

To sponsoring employees, however, the possibility of losing workers after expending significant costs in processing the labor certification application, the I-140 immigrant visa petition, and the AOS application AOS portability is no doubt viewed with a jaundiced eye. Yet the law arguably is designed to protect their interests as well, since it permits career progression within the sponsoring organization or between affiliated entities. Moreover, although AOS portability is new, mobility of workers is, in a sense, "old wine in new bottles," given that even before the enactment of AC21, the Immigration and Naturalization Service ("INS") had already begun to permit adjustment applicants with employment authorization documents ("EAD") to engage in "open market employment."4 Moreover, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) provided that professional athlete's labor certification would remain valid when he or she changes employers, as long as the new employer is a team in the same sport.5 The ramifications of AOS portability, however, are far-reaching, and this article discusses some of the more perplexing issues that employers, employees and attorneys must face in taking advantage of this new law.

Portability Under 106

AC21 106(c) amends 204 of the Immigration and Nationality Act ("INA") by adding a new subsection (j). Under INA 204, an employer may file an immigrant visa petition with the INS6 to employ an alien entitled to classification as an outstanding professor or researcher, a multinational executive or manager, a member of a profession holding an advanced degree or alien of exceptional ability, or a skilled worker, professional or other worker.7 Once the INS approves an employment-based immigrant visa petition, a sponsored worker whose immigrant visa priority date is current and who is otherwise qualified may file for adjustment of status.8 Section 106(c)(1) of AC21 provides that if an individual's application for AOS "has been filed and remained unadjudicated for 180 days or more," the immigrant visa petition will remain valid "with respect to a new job if the individual changes jobs or employers [and] if the new job is in the same or a similar occupational classification as the job for which the petition was filed."9 Section 106(c)(2) also provides that when an individual changes positions or employment, the labor certification for the original position will likewise remain valid.10


© Copyright 2001 Paparelli & Partners LLP. Published with permission. The present article is an expanded and revised version of an earlier article, Angelo A. Paparelli & Janet J. Lee, "Parting Is Such Sweet Sorrow": Musings on Adjustment of Status Portability, in New Rules for the New Millennium, AILA Publications (January 2001).

1 Pub. L. No. 106-313, 114 Stat. 1251 [hereinafter AC21].
2See Angelo A. Paparelli and Janet J. Lee, "A Moveable Feast": An Analysis of New and Old Portability Under AC21 105, 6 Bender's Immigr. Bull. 111, 126 (Feb. 1, 2001).
3For a discussion of this topic in the H-1B context, see Yoshiko I. Robertson, Avoiding the Abyss: H-1B Strategies When Facing Reductions in Force, in 2001-2002 Immigration & Nationality Law Handbook, AILA Publications (June 2001).
4 See 64 Fed. Reg. 29,208 (June 1, 1999) (establishing open market employment concept); Memorandum from Michael D. Cronin, Acting Associate Commissioner, to all INS offices, Revision of March 14, 2000 Dual Intent Memorandum, File No. HQADJ 70/2.8.6, 2.8.12, 10.18 (May 16, 2000) [hereinafter Cronin Memo], reprinted in 5 Bender's Immigr. Bull. 530 (June 1, 2000).
5 IIRIRA 624, now codified at INA 212(a)(5)(A)(iii).
6Technically, INA 204 confers authority to accept and adjudicate immigrant visa petitions on the Attorney General. However, the INS Commissioner is the designee of the Attorney General to receive and adjudicate such petitions. See INA 103, 8 C.F.R. 2.1.
7 INA 204(a)(1)(F). At the time of enactment, the relevant section was INA 204(a)(1)(D), as provided in the text of AC21 106(c)(1). Each classification is defined under INA 203(b)(1)(B), (b)(1)(C), (b)(2), and (b)(3).
8 INA 245.
9AC21 106(c)(1) (amending INA 204).
10 AC21 106(c)(2) (amending INA 212(a)(5)(A)).


About The Author

Angelo A. Paparelli (aap@entertheusa.com) 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 practices immigration law in Southern California. Ms. Lee is admitted to practice law in the State of California. She previously served as Executive Editor of The Labor Letters, Inc. from 1997 to 2000.


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