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

Biography

Effective Date

AC21 106 provides that if an adjustment of status application is unadjudicated for 180 days, the worker may change employment if the job is in the same or similar occupational classification. This provision does not state when it took effect. Thus, the pending period for adjustment of status before the date of AC21's enactment arguably may not count toward the 180 days. The section could conceivably apply to: (1) any application for AOS pending on October 17, 2000, the date AC21 was enacted; (2) any AOS application filed on or after October 17; or (3) labor certifications applications filed on or after October 17. Principles of statutory construction provide that the "plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole."11 Arguably, the plain language of the statute supports the interpretation that 106(c) should apply to all applications for AOS that were pending on October 17, because every such application "has been filed and remained unadjudicated." On the other hand, one could argue that given Congress' specific inclusion of a retroactivity provision in AC21 105 (the section authorizing H-1B portability),12 the lack of a similar provision under 106 may suggest an intent that AOS portability should apply only prospectively.

Yet it is black-letter law that "[f]aithful interpretation . . . demands the avoidance of strained, unreasonable or absurd meanings in view of the text and purport of the whole instrument."13 In looking at the different sections of AC21, one could reasonably maintain that Congress intended the statute as a whole to eliminate present backlogs and to avoid the negative impact that current backlogs have on AOS applicants. For example, Title II of AC21 states Congress' purpose of providing the INS with mechanisms to "eliminate the current backlog in the processing of immigration benefit applications within 1 year after enactment of this Act."14 Moreover, 106, taken together with other provisions of AC21,15 was intended to address concerns that individuals on H-1B visas "whose adjustment to permanent resident on the basis of employment has progressed far enough to the stay in the U.S. until a final decision is made" should not be forced to leave the country simply on account of "entirely unreasonable administrative delays."16 A fair reading of the statute as a whole would suggest, therefore, that the AOS portability provision was included in 106 to allow sponsored workers to progress in their careers despite unreasonable administrative agency delays.

Another argument for a broad reading of the statute may be based on public policy.17 An important public policy is the right of the individual to change jobs18 and another is to be free from indentured servitude.19 To be sure, there exists a public policy of protecting the U.S. labor market through a recruitment testing process known as labor certification. This policy, however, has its limits, as evidenced by the existence of the national interest waiver and other categories that are exempt from labor certification.20 If a government agency is unable or unwilling, however, to adjudicate an adjustment of status application within a reasonable time (which Congress has determined to be 180 days),21 it is reasonable to posit that the public policy favoring a labor certification should yield, and the worker should be allowed to change positions or employment, as long as he or she remains in the same or similar occupational classification.

Thus, based on a statutory interpretation of AC21 taken as a whole, and an analysis of the public policies underpinning the law, we believe that Congress intended that this remedial legislation should be liberally interpreted, take effect immediately and apply to all pending adjustment of status applications.

"Same or Similar Occupational Classification"

AC21 106 provides that once 180 days or more have elapsed after filing an AOS application, the alien may change jobs or employers as long as the new position is in the same or similar occupational classification. Section 106 thus confirms that a worker may change to a different position within the same organization. This mobility within the same company furthers the argument that Congress intended to ensure that alien workers are protected in their career progression, and that employers are able to utilize their employees' skills and talents in the most effective manner.

This policy may be extrapolated from the congressional hearings held before the enactment of AC21. Employers attested to the toll they bear waiting for INS adjudication of AOS applications, pointing to their inability to promote employees to new or managerial positions and disruption in employees' work.22 Employers also endorsed flexibility for workers whose AOS applications are pending by permitting workers to move to new positions "within the same category/skillset of the original position" so that important company projects may be completed.23 Although not specifically addressed in the Senate Judiciary Committee's report on AC21, the committee clearly recognized the importance of these employer concerns. Detailing the various high tech companies' contributions to the U.S. economy and education and training,24 the committee recognized that "inordinate delays" in administrative processing may have hampered the growth of these employers' businesses as well as their workers' careers.25

With these concerns in mind, the "same or similar occupational classification" should be broadly construed. Some may argue that when a worker changes jobs, a comparison should be made between the responsibilities of the old and new position, i.e., a job-for-job comparison. From a pragmatic perspective, such a comparison would not effectuate the statute's intent, in that a worker would essentially be permitted only to make a lateral move. Thus, under this narrow view, even if the job change were within the same organization, an employer would be restricted in its ability to promote workers if the employer were required to focus on whether the duties of the new position deviate too radically from the previous job. Instead, the employer and the adjustment applicant should be allowed to consider whether the worker could be moved to a position that entails more progressive responsibility or uses his or her knowledge and experience more effectively.

If an AOS applicant were to change employers, the new employer and prospective employee could be straddled with an even greater burden and risk. The new employer must closely evaluate whether the worker's new job duties match those of his or her previous position in a different company. Apart from the worker's obvious loss if his or her AOS application is denied, the new employer could lose a valued employee as well as risk the possibility of employing a worker without authorization. In light of the risks facing both parties, the assessment of whether the new job falls within the same or similar occupational classification must be carefully scrutinized. Thus, the new employer and alien will likely be forced to obtain a copy of the labor certification. That may be easier said than done, as the initial employer perhaps will not willingly provide this information. Moreover, the lawyer(s), who assisted in preparing the labor certification and who may be imputed under law as representative for both the initial employer and the beneficiary requesting the document, may well be caught in the crossfire.

A more reasonable interpretation is that the "same or similar occupational classification" is based on a comparison of the core competencies of the new job and the AOS applicant's previous position. This approach may mitigate the hiring employer's and worker's risks in beginning new employment, since the focus of the assessment would be placed on the applicant's work experience and skills. Looking to the types of skills required for a particular position would match more closely to what jobs fall within a particular occupational classification. As most employers know, jobs with very different responsibilities may still fall under the same occupational classification because the substantive knowledge required for those jobs may be the same. Moreover, this approach would be more consistent with the actual language of the law, as 106 permits job changes within the same or similar occupational classification.

An example cited by an employer in the congressional hearings makes the point clearly. A design engineer and a product engineer both require similar skillsets, even though the job duties may differ.26 Another example would make a comparison of the job duties of a computer software engineer with those of a computer engineering professor. The duties for these two positions are very different, but they both require expert knowledge in computer engineering. Certainly, there are a plethora of factual scenarios, all yielding different results under the AOS portability provision. As such, a narrow interpretation of what would fall within a particular occupational classification could nullify the ameliorative purpose of the new law.

Another issue pertains to the administrative mechanism and procedure for determining whether a job is in the same or similar occupational classification. The language of the statute provides that the labor certification and I-140 petition remain valid when two events occur: (1) 180 days pass after the filing of the AOS application; and (2) a job change is made within the same or similar occupational classification. Given this structure, the argument can be made that the AOS portability provision is self-executing and, thus, specific regulations are not necessarily required to implement the law. Certainly, if a formal procedure is established, more administrative delays would result, thereby undermining the purpose of AC21. The most effective method of implementing the law would thus be for employers and employees to make a reasonable good faith determination of whether a job change falls within the ambit of 106. In this situation, perhaps the primary risks would arise when there are later encounters with the INS, such as when the alien reenters the United States after the job change, or when he or she applies for naturalization. Perhaps the best approach would be for the INS to allow the alien an option to request an advisory opinion27 in connection with the pending AOS application, but not require a formal adjudication in every case. This approach is commendable because it reduces the aggregate number of determinations on job similarity that the INS would be required to make and thus minimizes further administrative delays.

For Part I of the article, click here.


© 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).

11 Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).
12Section 105 of AC21 provides that H-1B portability applies to "petitions filed before, on, or after the date of enactment of this Act."
13Norman J. Singer, Statutes and Statutory Construction 56A:01 (6th ed. 2000).
14AC21 202.
15 AC21 104(c) provides that an alien may be granted an extension of H-1B status, notwithstanding the usual six-year cap on H-1B visa status, if he or she is a beneficiary of an employment-based immigrant visa petition and "is eligible to be granted that status but for application of the per country limitations." The extension may be authorized "until the alien's application for adjustment of status has been processed and a decision made thereon." Also, 106 allows an extension of H-1B status in one year increments for an alien if 365 days or more have elapsed since the filing of a labor certification on the alien's behalf (if the certification is required for an immigrant petition) or the filing of an immigrant visa petition under INA 204(b).
16S. Rep. No. 106-260, at 23 (Apr. 11, 2000).
17Norman J. Singer, Statutes and Statutory Construction 56.01 (6th ed. 2000): "A narrow construction should not be permitted to undermine the public policy sought to be served."
18See, e.g., IVI Environmental Inc. v. McGovern, 707 N.Y.S.2d 107 (N.Y. App. Div. 2000) (court refused to issue a temporary injunction against a former employee based on the employer's failure to show irreparable harm if a restrictive covenant were not enforced).
19 See, e.g., United States v. Shackney, 333 F.2d 475 (2d Cir. 1964) (involuntary servitude of any individual is prohibited under U.S. Const. amend. XIII).
20 See Nathan A. Waxman and Karen L. Dean, A Practitioner's Guide to the National Interest Waiver, 97-07 Immigr. Briefings (Jul. 1997). Other categories that are exempt from labor certification include the employment-based first preference immigrant visa category and Schedule A, Group II. See INA 203(b)(1)(A), 203(b)(2)(B)(i). See also 20 C.F.R. 656.10(b).
21AC21 202(b).
22Statement of Heidi Wilson, Corporate Immigrations Manager Sun Microsystems, Congressional Field Hearing on the INS (Feb. 25, 2000), available at http://www.shusterman.com/wilson.html.
23Statement of Deborah Kessler, Human Resources Immigration Manager, Intel Corporation, Congressional Field Hearing on the INS (Feb. 25, 2000) available at http://www.shusterman.com/kessler.html.
24 S. Rep. No. 106-260, at 9, 11, 14-16 (2000) (relying on testimony of T.J. Rodgers, President and CEO of Cypress Semiconductors: "[F]or every foreign born engineer he can hire, he employs five more Americans in marketing, manufacturing and related endeavors"). The committee also noted the significant contributions of foreign workers to educational institutions.
25Id. at 10, 23.
26Statement of Deborah Kessler, supra note 23.
27Immigration regulations already provide such an option in the E visa context. Under 8 C.F.R. 214.2(e)(8)(v), an alien may file a Form I-129, fee and a description of a change requesting "appropriate advice" as to whether a substantive change in the terms and conditions of E status occurred.


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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