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"A Moveable Feast": An Analysis of Adjustment of Status Portability Under AC21 (Finale)
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

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.

Labor Certification - Background

The concept that an approved labor certification remains valid with respect to an alien who has changed to another qualifying job raising potential problems involving the "recycling" of an approved labor certification. Employers have long been permitted to recycle an approved, but unused labor certification by substituting an alien beneficiary.28 Thus, employers were often able to salvage a labor certification that would otherwise be unused if the initially sponsored alien beneficiary resigned or was terminated from employment. Under former practice, the Department of Labor ("DOL") had allowed employers to return an approved labor certification and submit an identical application on behalf of another alien worker with similar qualifications.

The evolution of this procedure shows several failed attempts by the DOL to restrict or eliminate alien substitution. In its Technical Assistance Guide ("TAG"), the DOL restricted the use of this procedure to the first six months of the date of certification. The Fifth Circuit rejected this limitation in Medellin v. Bustos.29

The Fifth Circuit based its holding on several factors. First, the court found that recognizing the DOL's interpretation as expressed in the TAG would disrupt the delicate interplay of administrative power. According to the court, the DOL is specifically mandated to determine whether: (1) U.S. workers are able, willing, qualified and available to work at the time and place where the alien is to be employed; and (2) employment of the alien worker will adversely affect the wages and working conditions of similarly employed U.S. workers. It is the INS, the court ruled, that has the authority to determine eligibility for immigrant visas.30 By limiting substitution, the court concluded, the DOL effectively determined the "fate of the particular alien,"31 which is the province of the INS.

Second, the court ruled that the TAG's limit on substitution of alien beneficiaries was inconsistent with both federal regulations and agency practice. The court noted that 20 C.F.R. 656.30(a) provides that a labor certification is valid indefinitely. Hence, once a test of the labor market has been completed, the DOL is not authorized or required to reevaluate the relevant labor market. Thus, in the case presented, the only event triggering the revocation of the labor certification was that the employer sought substitution after the allotted six-month window. Noting that the labor certification would have remained valid for potentially several years (until the alien beneficiary's approval for an immigrant visa), the Fifth Circuit concluded that the six-month limitation did not comport with the indefinite validity of the same labor certification without substitution.

Finally, the Fifth Circuit ruled that limiting a labor certification to the alien for whom the certification was initially granted would fulfill the purpose of the statute "only if the qualifications of a substitute alien are so different from those of the original applicant that employment of the substitute will adversely affect the wages and working conditions of United States workers similarly employed."32

With the enactment of the Immigration Act of 1990 ("IMMACT"),33 the DOL attempted to promulgate regulations that eliminated the substitution procedure altogether.34 The DOL stated that its decision was based on "a variety of reasons," including: the Department's belief that substitution of alien beneficiaries was unfair to U.S. workers who may be available for the job at the time of substitution and to other aliens seeking to enter the United States who have a later priority date. The DOL also expressed concern about potential abuse and manipulation.235 According to the DOL, "the benefits of the accommodation are outweighed by the negative factors related to the substitution practice."36 In a 1994 challenge to the statute, however, the D.C. Circuit enjoined the enforcement of this provision. Basing its decision on the Administrative Procedure Act (APA),37 the court held in Kooritzky v. Reich that the DOL failed to satisfy its obligation to provide notice and an opportunity for comment by interested parties regarding the proposed elimination of substitution of aliens.

After this decision, the DOL processed requests for substitution of aliens under the pre-IMMACT procedure. However, in 1996, the DOL delegated this responsibility to the INS, which established the current procedure for substitution. Thus, after the termination of the alien beneficiary's employment, the sponsoring employer may initiate the substitution of the alien beneficiary by filing an I-140 petition on behalf of the substitute employee. The employer must demonstrate that the substitute alien worker satisfied "all of the minimum education, training, or experience requirements, as stated in Part A of the original Form ETA 750 filed by the employer, at the time the original labor certification application was submitted to the state employment office."38 Moreover, the employer must submit a new Part B of the Form ETA 750, Statement of Qualifications of Alien and supporting documentation evidencing the substitute alien beneficiary's education, training or experience. The INS memorandum outlining this procedure also provides that if the sponsoring employer has already submitted the approved labor certification to the INS, the employer may submit a photocopy of the original Form ETA 750, Parts A and B, along with the DOL certification and, if one exists, a copy of a previous Form I-140 petition and a new Form I-140 petition.39

Continuing Viability of Substitution - The "Cell Mitosis" Theory

Although 106(c)(2) does not expressly revoke the sponsoring employer's right to substitute another alien when the initial alien worker changes employment, attorneys and their clients must weigh the risks very carefully before making the decision to substitute another alien worker in the labor certification. In light of the AOS portability provision, the INS or the DOL may take the position that substitution of aliens is no longer permitted. Either agency may argue that the ruling in Kooritzky was premised upon a finding of violations of the APA notice and opportunity to provide comment requirements, i.e., administrative violations, rather than a substantive determination regarding the legitimacy of the principle of substitution of aliens. As a result, the INS or DOL could argue that AC21 established the alien beneficiary's legal entitlement to the approved labor certification, thereby nullifying the sponsoring employer's right to substitute an alien beneficiary. For reasons discussed below, however, the public policy espousing portability must be reconciled with other policy interests.

AOS portability does not necessarily reflect an intent to deprive the initial sponsoring employer of the benefits procured through the test of the labor market. By providing that an approved labor certification will remain valid after an alien beneficiary properly changes employment, AC21 likely eliminated an employer's ability to revoke the labor certification underlying his or her I-140 petition. Given that revocation and substitution are two separate procedures, there is no clear basis to argue that Congress intended to eliminate the longstanding substitution practice.

Moreover, the significant investment employers make in obtaining a labor certification ought not be lost in the implementation of the new law. Before an immigrant visa petition is filed for professionals holding advanced degree, individuals of exceptional ability in sciences, arts, or business, skilled workers, and professionals holding a baccalaureate degree, an approved labor certification is required.40 In order to obtain approval from the DOL for labor certification, the employer must show that it conducted recruitment efforts to find U.S. workers who are "able, willing [and] qualified" for the job.41 This procedure requires the employer to invest significant resources to obtain the benefit of hiring a foreign worker on a permanent basis. If the labor certification remained valid only with respect to the worker's new employment and his or her pending AOS application, the initial sponsoring employer would lose not only a valued employee but also the fruits of its efforts in testing the labor market.

In fairness to all three parties, the labor certification should be treated as "divisible" under what can be called the "cell mitosis" theory.43 Under this theory, the labor certification would remain valid with respect to the employee's new job,43 and the sponsoring employer would also be permitted to substitute another alien worker on the labor certification. From the sponsoring employer's perspective, the conditions under which the labor certification was granted remain the same (other than the fact that the initial worker has resigned); there is still a demonstrated shortage of U.S. workers for the position. To require the employer to test the market again would be unfair and unduly burdensome. Thus, just as in the process of cell mitosis, each party (the sponsoring employer and initial beneficiary employee) should be able to retain the benefits flowing from the single approved labor certification. These benefits would include the immigrant visa priority date and the labor certification as well. To those who would argue that this would be "double-dipping," the response lies in the annual immigrant visa quota.44 This allotment provides a safeguard in that it limits the aggregate number of grants of lawful permanent resident status that the government may accord in any given year. Time will tell whether an enlightened INS or DOL, or an open-minded federal judge, will accept the cell mitosis theory.

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.

Travel Issues

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

Ethical Issues

Finally, a thorough discussion of the ethical issues arising for practitioners should be considered, but is beyond the scope of this article. It bears noting, however, that both H-1B and AOS portability raise potentially significant issues for attorneys. Although an attorney may take steps to clarify that he or she represents only one party, the attorney may be considered the other party's legal representative as well. 67 Given the complexity of the debate concerning an attorney's ethical duties toward the employer, employee, or both, the following is a general overview of the fundamental duties owed to clients and potential issues that may come into play in light of AC21.

Attorneys owe clients the duty of loyalty, zealous representation and confidentiality. 68 When an attorney represents two or more clients with respect to the same matter, communications between the clients and the attorney within the scope of representation will not be deemed confidential between the clients. 69

An attorney must also avoid conflicts of interest with clients.70 AC21 inadvertently facilitates conflicts of interest by specifically fostering changes in employment, thereby dividing employer and employees' interests in pursuing an adjustment of status. Thus, if situations arise in which an employee for whom an AOS application was filed inquires about the law or about procedures for changing employment, the attorney who prepared the application may be in an ethical conundrum.

The proper response to such a situation may be unclear, and perhaps may even depend on the expectations of the parties with respect to the role of the attorney. Thus, even in situations where the employer retained the attorney, an implied client-attorney relationship may exist with regard to the employee beneficiary. When the employee transmits confidential information to the attorney, whom the employee reasonably believes is acting in furtherance of his or her interest, an implied client-attorney relationship may exist. 71 Courts have held that "the expectation of the client based on how the situation appears to a reasonable person in the client's position" is one of the most important factors in determining whether an attorney-client relationship exists. To avoid a finding of an implied attorney-client relationship, an attorney could inform the alien that the attorney does not represent the alien. This position could be communicated to the alien, and reiterated through the course of representation of the company client. This approach is supported by some case law.72 However, in the context of representing a client through labor certification, the I-140 petition and AOS application processing, an attorney may have tremendous difficulty in arguing that the employee should have no reasonable expectation that the attorney represents only the employer. The attorney may communicate directly with the employee, obtaining confidential information in furtherance of the goal of the representation, which inures to the employee's benefit. The case law illustrates that the finding of an implied client-attorney relationship is very fact specific. Thus, every aspect of the attorney's practice could be scrutinized to determine whether an alien beneficiary reasonably expected confidentiality.

Conclusion

In the past six months, the economic climate that greeted the enactment of AC21 has changed dramatically. As more companies announce mass layoffs, employers and employees alike may find more reason to appreciate AOS portability. Moreover, harkening to our comparison of the expatriate life in Hemingway's A Moveable Feast, the U.S. marketplace can be characterized as volatile yet filled with opportunity, an economy with riffs and RIFs, just as in the tumultuous Jazz Age.

The increased opportunity for mobility under AC21 may yet prove to be a saving grace for those who are able to find new positions after a layoff. Furthermore, employers who continue to have a high demand for workers may benefit from the AOS portability provision by recruiting workers with six-month-old AOS applications pending. Thus, it is likely that the volatile employment marketplace of America will continue to be a moveable (if always not delectable) feast for foreign workers and U.S. employers.


© 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)). 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. 28 See memorandum from Louis Crocetti, INS Associate Commissioner, to all INS offices, Substitution of Labor Certification Beneficiaries, File No. HQ 204.25-P (Mar. 7, 1997), reproduced in 73 Interpreter Releases 444 (Apr. 8, 1996) [hereinafter Crocetti Memo]; memorandum from Barbara Ann Farmer, DOL Administrator for Regional Management, to all DOL regional administrators, Final Procedures for Substituting Alien Beneficiaries on Approved Labor Certifications, Field Memorandum No. 28-96 (Mar. 22, 1996), reproduced in 73 Interpreter Releases 447 (Apr. 8, 1996) [hereinafter Farmer Memo].
29 854 F.2d 795 (5th Cir. 1988). The Fifth Circuit also held that a six-month time limitation on substitution of a beneficiary was invalid, in part because a labor certification is valid "indefinitely." Id. at 798.
30 Id. at 797.
31 Id.
32 Id. at 798.
33 Pub. L. No. 101-649, 104 Stat. 4978. IMMACT established initial annual immigration limits of visas for family-sponsored immigrants and employment-based immigrants.
34 56 Fed. Reg. 54,920 (Oct. 23, 1991).
35 Id. at 54,925.
36 Id.
37 Kooritzky v. Reich, 17 F.3d 1509 (D.C. Cir. 1994).
38 See Crocetti Memo, supra note 28; Farmer Memo, supra note 28.
39 For samples on how the substitution procedure may be implemented, see Angelo A. Paparelli, Substitution of Beneficiary, in AILA Immigration Practice Toolbox (2001).
40 Certain immigrant visa petitions in the EB-2 classification (INA 203(b)(2)(A), 203(b)(2)(B), 8 C.F.R. 204.5(k)) and all visa petitions in the EB-3 category (INA 203(b)(3)(A)(i), 203(b)(3)(A)(ii), 8 C.F.R. 204.5(l)) require an approved labor certification.
41 The DOL attempted to streamline the labor certification process by issuing General Administrative Letter 1-97, Measures for Increasing Efficiency in the Permanent Labor Certification Process (Oct. 1, 1996), reproduced in 73 Interpreter Releases 1476 (Oct. 21, 1996). GAL 1-97 allows employers to request a "reduction in recruitment" (RIR) after engaging in "real world" advertising.
42 Mitosis is the "process in cell division by which the nucleus divides, normally resulting in two new nuclei, each of which contains a complete copy of the parental chromosomes." American Heritage Dictionary 534 (3d ed. 1994).
43 Under this theory the worker will not lose the underlying basis for his or her AOS application.
44 INA 203(b) provides the allocation of immigrant visas for employment-based immigrants. 45 The statute specifically states, "A petition under subsection (a)(1)(D) . . . shall remain valid with respect to a new job." AC21 106(c).
46 See Crocetti Memo, supra note 28; Farmer Memo, supra note 28.
47 Charles Dickens, Oliver Twist Ch. LI (1837) (Mr. Bumble).
48 See, e.g., Spyropoulos v. INS, 590 F.2d 1 (1st Cir. 1978); Matter of Poulin, 13 I. & N. Dec. 264 (BIA 1968); Matter of Marcoux, 12 I. & N. Dec. 827 (BIA 1968).
49 See 3 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure 39.02[2][d] (rev. ed. 2001) [hereinafter Immigration Law and Procedure].
50 Faddah v. INS, 553 F.2d 491 (5th Cir. 1977). See also Immigration Law and Procedure, supra note 49, at 51.05[2].
51 Matter of Hosseinpour, 15 I & N. Dec. 191, 192 (BIA 1975) (dictum) ("Moreover, courts have held that a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status") (citations omitted); Choy v. Barber, 279 F.2d 642, 646 (9th Cir. 1960) (wish to remain if legal opportunity arises is not inconsistent with nonimmigrant status); Chryssikos v. Comm'r of Immigration, 3 F.2d 372, 375 (2d Cir. 1924) ("But there is a great difference between wanting to stay and intending to stay. And proof of a desire to stay is not proof of an intent to stay").
52 INA 214(h), 8 C.F.R. 214.2(h)(16), 8 C.F.R. 214.2(l)(16). 64 Fed. Reg. 29,208, 29,209 (June 1, 1999) ("So long as the alien clearly intends to comply with the requirements of his or her nonimmigrant status, the fact that the alien would like to become a permanent resident, if the law permits, this, does not bar the alien's continued holding of a nonimmigrant status.").
53 Memorandum from Paul Virtue, Acting Executive Associate Commissioner, Programs, to all INA offices, File Nos. HQ 70/6.2.5, 70/6.2.9, 70/6.2.12, 70/23.1, 120/17.2 (Aug. 5, 1997), reproduced in 74 Interpreter Releases 1226 (Aug. 11, 1997).
54 Yui Sing Tse v. INS, 596 F.2d 831 (9th Cir. 1979). 55 8 C.F.R. 245.2(a)(4)(ii).
56 Id.
57 Id.
588 C.F.R. 245.2(a)(4)(ii)(C).
59See Paparelli & Lee, supra note 2, at 143.
60 Cronin Memo, supra note 4.
61Id.
62 U.S. Dep't of State, 9 Foreign Affairs Manual 42.43 n.1.1, 42.80. See also Angelo A. Paparelli & Mitchell Tilner, A Proposal for Legislation Establishing a System of Review of Visa Refusals in Selected Cases, 65 Interpreter Releases 1027 (Oct. 7, 1988).
638 C.F.R. 245 provides procedures for AOS application filing. 22 C.F.R. Parts 40 to 43 provide the procedures for visa issuance overseas.
64Questions for AILA-Visa Office Liaison Meeting (Mar. 22, 2001), available at http://www.aila.org/infonet.
65Id.
66Report of AILA-INS Immigration Services Division teleconference (May 10, 2001), available at http://www.aila.org/infonet.
67 See Angelo Paparelli et al., Avoiding or Accepting Risks in H-1B/LCA Practice: Part II, 92-12 Immigr. Briefings (Dec. 1992). See also Bruce Hake, Dual Representation and Immigration Practices, 5 Geo. Immigr. L.J. 581-639 (1991); Michael Maggio, Basic Ethical Issues in Labor Certification Cases, in David Stanton Manual on Labor Certification: The Nuts and Bolts on How to Prepare Labor Certification Theory and Practice 130 (2d ed. 2000).
68 See California Bar Association Rules of Professional Conduct Chapter 3 (2000), available at http://www.calbar.org; American Bar Association Model Code of Prof'l Conduct 1.7 (2000).
69 See, e.g., Cal. Evid. Code 962, available at http://caselaw.lp.findlaw.com/cacodes/evid/950-962.html, which states: "Where two or more clients have retained or consulted a lawyer upon a matter of common interest, none of them, . . . may claim a privilege under this article as to a communication made in the course of that relationship when such communication is offered in a civil proceeding between one of such clients . . . and another of such clients."
70 See California Bar Association Rules of Professional Conduct 3-300, 3-310, available at http://www.calbar.org.
71 Responsible Citizens v. Superior Court, 16 Cal. App. 4th 1717, 1733 (Cal. Ct. App. 1993) (citing Ronald I. Friedman, The Creation of the Attorney-Client Relationship: An Emerging View, 22 Cal. W.L. Rev. 209 (1986)). See also In re O'Byrne, 298 Or. 535 (Or. Sup. Ct. 1985) (implied attorney-client relationship existed based on factual findings, including attorney had taken certain actions on behalf of the plaintiffs and communication with the plaintiffs were made under by firm letterhead); Bridge Products v. Quantum Chemical, 1990 U.S. Dist. LEXIS 5019, 20 ELR 20940 (N.D. Ill. 1990) (attorney-client relationship was formed when plaintiff, based on a reasonable belief that attorney-client relationship existed, disclosed confidential information during preliminary consultations).
72Banc One v. Kneipper, 67 F.3d 1187 (5th Cir. 1995) (no implied in fact professional relationship where the attorneys expressly disclaimed any client-attorney relationship); Bohn v. Cody, 119 Wash. 2d 357 (Wash. Sup. Ct. 1992) (in light of the attorney's disclaimers and consistent action, attorney-client relationship did not


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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