"A Moveable Feast": An Analysis of Adjustment of Status Portability Under AC21 (Part IV)
Withdrawal of I-140 Petition
AC21 § 106(c) also provides that an approved I-140 petition remains valid.45 The memorandum of understanding between the INS and the DOL46 and the implementing procedure for substitution of alien beneficiaries contemplates that the I-140 petition may be withdrawn, given the interrelation between the I-140 petition and the labor certification.
AC21 likely prohibits withdrawal of the initial I-140 petition after a worker's termination of employment, thereby creating a very real tension between two competing interests. One the one hand, Congress has clearly articulated that individuals should not be "penalized" for administrative delays, recognizing that these foreign workers have a legitimate interest in pursuing their careers. However, although Congress acknowledged that employers are harmed as well by these same administrative delays, the legislators remained silent as to the initial sponsoring employer's right to the benefits flowing from an approved labor certification and I-140 petition.
Ultimately, in a just world the continuing validity of the labor certification and I-140 petition should exist in harmony with the principle of substitution of alien beneficiary. From a practical perspective, benefits could be won or lost simply by virtually random occurrences of particular events. For example, if the substitution procedure is completed before the adjudication of the AOS application, the initial alien worker would lose the benefit of the continuing validity of the labor certification and I-140 petition. This would not only contravene the purpose of AC21, but also create a fundamentally unfair situation as the INS procedure for substitution and the agency's AOS adjudication are conducted independently of one another. However, the employer will likely act as soon as possible to obtain a substitution before the adjudication of the underlying AOS application. If approval of such a procedure hinges on the timing of the AOS adjudication, which is an uncertain demarcation, the INS could create a sort of free for all. "If the law supposes that," said a famous fictional character, "the law is a ass, a idiot."47
Intent to Work for Petitioning Employer
An AOS applicant is responsible for establishing his or her intent to work for the petitioning employer after the alien becomes a permanent resident. This requirement has evolved through case law.48 If the petition requires a job offer, the individual beneficiary must possess this intent not only at the time the employment-based preference petition is filed but also at the time of his or her entry into the United States on an immigrant visa or adjustment of status.49 If the labor certification and I-140 petition remain valid after a worker changes positions, will the worker in the post-AC21 era still be required to show intent to work for the petitioning entity after becoming a permanent resident?
Given the public policy statements made clear in the congressional records regarding an employee's ability to change jobs, perhaps a policy should be developed whereby the intent-to-work requirement for AOS portability purposes is treated analogously to the intent to immigrate requirement for certain nonimmigrants. Generally, when an AOS applicant enters the U.S. as a nonimmigrant with a preconceived intent to immigrate, the INS may refuse adjustment of status based on this finding.50 If an alien has B-1/B-2 status, for example, he or she is required to maintain a residence abroad that he or she has no intent of abandoning. However, the alien may still file an adjustment of status application, reflecting a desire to remain in the United States should the law and the factual circumstances thereafter so permit.51 If an alien is working in the United States in H-1B or L-1 status, however, he or she is not required to demonstrate any particular intent.515 According to the INS, a worker in H-1B or L-1 status may continue to work and obtain extensions of stay while pursuing an adjustment of status application.53
The intent-to-work requirement should be modified in light of the availability of an EAD and enactment of AC21. An individual should be able to argue that he or she intends to work for the sponsoring employer, if that is ultimately required but that the worker retains the statutory option to invoke the job change privilege accorded by AC21, should the INS take more than 180 days to adjudicate the AOS application. This interpretation is consistent with case law on which the intent requirement is based. The courts have recognized that in some cases a worker's change of employment did not affect his or her intent to work for the petitioning employer. Thus, the individual may argue that intent to work for the petitioning employer does not require that he or she remain in the same job for a particular length of time. The Ninth Circuit has held that the language of INA § 212(a)(5) does not bear upon the length of commitment required of the beneficiary.54 Moreover, as noted, AC21 clearly recognizes not only that the worker should be permitted to change jobs but that barriers to such opportunities should be eliminated. A worker should be able to argue that although he or she was initially prepared to be employed with the petitioning employer, AC21 created a statutory right that is similar to the common law privilege created for nonimmigrant workers with respect to dual intent.
© 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).
45 The statute specifically states, "A petition under subsection (a)(1)(D) . . . shall remain valid with respect to a new job." AC21 § 106(c).
About The Author
Angelo A. Paparelli (firstname.lastname@example.org) 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.