"A Moveable Feast": An Analysis of Adjustment of Status Portability Under AC21 (Part V)
During the pendency of an AOS application, an individual may be deemed to have abandoned his or her application if he or she travels abroad without the requisite travel documents.55 If an AOS applicant enters the United States with an advance parole document, the individual will be considered to be paroled and be treated as an applicant for admission should his or her AOS application be denied.56 Consequently, the AOS applicant may be subject to provisions regarding inadmissibility and removal.57 However, if the AOS applicant is in lawful H-1B or L-1 status, he or she may travel with a valid visa and I-797 receipt notice if he or she "remains eligible for H or L status, is coming to resume employment with the same employer for whom he or she had previously been authorized to work as an H-1 or L-1 nonimmigrant, and, is in possession of a valid H or L visa and the original I-797 receipt notice for the application for adjustment of status."58
A conflict may arise between the INS' position regarding continued employment with the same employer and the new portability provisions. Given that AC21 provides greater flexibility for aliens with respect to changing employment without jeopardizing their status, travel restrictions should also be liberalized. For example, if a worker is in H-1B status and begins new employment after 180 days have elapsed since the filing of his or her AOS application, both the § 105 and § 106 portability options are available. If the worker begins new employment upon the employer's filing of an H-1B petition, the worker should be able to travel with his or her old visa (as long as it has not expired) and proof of filing.59 Moreover, if the worker re-enters the United States with an advance parole document, the worker may be required to prove at inspection that if a job change occurred, the new job is in the same or similar occupational classification as the previous position. The worker may argue that if he or she changed H-1B employment, both jobs require the same specialized knowledge and, thus, are in the same occupational classification.
Availability of Consular Processing
The continuing validity of an I-140 petition under AC21 § 106 raises the issue of whether an alien who has applied for AOS may concurrently pursue immigrant visa ("IV" or consular) processing after the AOS application has been pending for 180 days and the alien changes jobs. The INS has taken a position against concurrent filing of an AOS application and immigrant visa application, thus requiring an alien to choose between the two procedures.60 According to the INS, concurrent filing of an AOS application and immigrant visa processing is not "an efficient and effective use of the Service's resources."61 If an alien chooses to pursue consular processing, the INS will notify the alien or attorney that the I-485 application will be terminated and visa petition will be forwarded to the State Department's National Visa Center for processing. There is no legal authority, however, for the INS to require an individual to choose between the two procedures.
Both procedures offer advantages and disadvantages. A person may obtain lawful permanent resident status more quickly through consular processing than through AOS. But adjustment of status provides some significant advantages over consular processing. For example, an AOS applicant may challenge erroneous agency action in federal court, and enjoys the right to counsel, whereas an immigrant visa applicant denied overseas could be stranded abroad without any effective way to challenge the denial.62
Nevertheless, an applicant should be given the opportunity to take advantage of both processes. The law does not mandate exclusivity, as the two procedures are created by alternative regulatory provisions.63 Each procedure requires separate filing fees and encompasses different legal benefits, but an individual only obtains only one green card.
The INS has a legitimate interest in using its resources in the most efficient manner. However, this argument is not compelling in the context of concurrent AOS filing and consular processing, given that both procedures are funded by user fees. It can even be argued that if an alien files both an AOS and consular visa applications, one of the two agencies is unjustly enriched. If the agencies established better inter-agency communication, when one agency completes adjudication and the alien is granted lawful permanent resident status, it could inform the other agency, at which point the latter may discontinue processing and close the case.
Recently the DOS has indicated that consular processing based on AOS portability will be accepted.64 Based on the continuing validity of an I-140 petition following a job change, the DOS has stated that consular processing would be available for workers following such a change. According to the DOS, consular posts could adjudicate an immigrant visa application without requiring a newly approved I-140 petition if the requirements of AC21 § 106 are satisfied.65 Although the INS has not taken a position regarding the availability of consular processing in light of AC21, the INS has stated that if an applicant has filed an AOS application and pursues consular processing, he or she should notify the INS to withdraw the AOS application.66
© 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).
55 8 C.F.R. § 245.2(a)(4)(ii).
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.