New Interpretation On Job Flexibility During Adjustment Of Status
Section 106(c) of the American Competitiveness in the 21st Century Act (AC21) introduced a very novel concept. It gave some degree of mobility to the noncitizen employee who was being sponsored for permanent residence by a US employer when an adjustment of status application (Form I-485) took 180 days or more to process. When an adjustment application is pending for more than 180 days, Section 106(c) allows such a noncitizen employee to either change jobs within the same sponsoring entity or to move to a new employer who offers a same or similar job.
Thus, Section 106(c) allows a noncitizen employee much needed flexibility and freedom, especially when the Bureau of Citizenship and Immigration Services (BCIS) takes unduly long to approve an application for permanent residency. The foreign national employee could be promoted within the same company, or could also be moved to another location within the United States, without jeopardizing the underlying validity of the labor certification. Labor certification is granted based on the employer’s inability to find US workers who can take up the position for which the noncitizen employee has been sponsored in a particular area of employment and at the prevailing wage stated on the application. Not only is the labor certification specific to the area of employment but it is also specific to an employer. Section 106(c) now keeps intact the validity of this labor certification if the noncitizen changes jobs as long as the "new job is in the same or similar occupational classification as the job for which the petition is filed" and Form I-485 is pending for 180 days or more.
Since the enactment of AC21 in 2000, the government, employers and foreign national employees have been shooting in the dark with regards to understanding Section 106(c)’s beneficial impact on foreign national employees, who in other circumstances are largely at the mercy of their petitioning employers during the sponsorship process. Fortunately, on August 4, 2003, William Yates, Acting Associate Director of Operations, BCIS, issued limited guidance (Yates Memo) on the applicability of Section 106(c), which has also been codified at Section 204(j) of the Immigration and Nationality Act (the Act).
Section 106(c) states:
A petition under subsection (a)(1)(D)(since re-designated section 204(a)(1)(F) of the Act) for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or similar occupational classification as the job for which the petition is filed.
Earlier, on June 19, 2001, the Office of Programs of the legacy Immigration and Naturalization Service issued a memo instructing its offices to not deny adjustment applications when the foreign national applicant has changed jobs under the circumstances described in
This memo, however, was issued prior to the interim rule of July 31, 2002, which permitted concurrent filing of the Employment-based Immigrant Visa Petition (Form I-140) and the application for Adjustment of Status (Form I-485). The Yates Memo instructs on the applicability of Section 106(c) when both the I-140 petition and I-485 application are filed concurrently, and the employer withdraws Form I-140.
According to the Yates Memo, "(i)f the Form I-140 has been approved and the Form I-485 has been filed and remained unadjudicated for 180 days or more (as measured from the I-485 receipt date), the approved Form I-140 will remain valid even if the noncitizen employee changes jobs or employers as long as the new offer of employment is in the same or similar occupation. If the Form I-485 has been pending for less than 180 days, then the approved Form I-140 shall not remain valid with respect to a new offer of employment."
If an employer thus withdraws the approved Form I-140 on or after the date that the Form I-485 has been pending 180 days, the approved Form I-140 shall remain valid under the provisions of Section 106(c) of AC21. If, on the other hand, approval of the Form I-140 is revoked or Form I-140 is withdrawn before the Form I-485 has been pending 180 days, the approved Form I-140 is no longer valid with respect to a new offer of employment and the Form I-485 may be denied. It is therefore apparent, according to the Yates Memo, that the Form I-140 must be approved before Section 106(c) is able to take effect. Thus, if Form I-485 has been pending for more than 180 days, and Form I-140 has not been approved, the employee would not be able to take advantage of Section 106(c) by moving to a same or similar occupation. Similarly, if the employer withdraws the pending, but unapproved I-140, even though Form I-485 has been pending for more than 180 days, the employee would not be able to take advantage of Section 106(c).
The Yates Memo also goes on to state that if at any time the BCIS revokes approval of the Form I-140 based on fraud, the noncitizen will not be eligible for the job flexibility provisions of Section 106(c) of AC21 and the officer may also immediately deny the I-485 application.
Assuming Form I-140 has been approved, and the Form I-485 has been pending 180 days or more, what are the reporting obligations of the noncitizen employee who wishes to take advantage of Section 106(c)? To date, no rule has been promulgated to implement this section, although the Yates Memo states (in the case where the approved I-140 is withdrawn by the employer) that "(i)t is expected that the alien will have submitted evidence to the office having jurisdiction over the pending Form I-485 that the new offer of employment is in the same or similar occupational classification as the offer of employment for which the petition was filed." If no evidence has been received, the BCIS officer must issue a Notice of Intent to Deny the pending Form I-485 to afford the noncitizen employee to submit evidence with respect to a new offer of employment in a same or similar occupational classification as the job for which the petition was filed.
Not all employers revoke the Form I-140, and there is no mandatory requirement for the employer to do so, in the event that the employer no longer wishes to sponsor the noncitizen. The BCIS may never come to know that the noncitizen has taken advantage of Section 106(c) and would not issue a Notice of Intent to Deny. As there is no rule promulgated as yet requiring an employee to submit evidence of the new employment to the BCIS, it would still be prudent for the individual taking advantage of Section 106(c) to do so on his/her own volition. Submitting such evidence would establish a record for all times that this person received new employment or an offer of employment prior to the green card in compliance with Section 106(c). Taking such a precautionary measure would also insulate one against any allegations later, when applying for citizenship, that he/she did not take up employment with the sponsoring employer and thus improperly obtained permanent residency. On the other hand, as there is not yet any mandatory requirement for the noncitizen to report the change in the employment situation, the noncitizen should not be penalized and should be given an opportunity later, if there is an allegation of improperly obtaining permanent residency, that he/she was in compliance with Section 106(c).
Finally, the Yates Memo correctly advises that there is no requirement in statute or regulations that a beneficiary of Form I-140 actually be working with the petitioning employer until permanent residence is granted. There only needs to be an offer of employment, and an intent, at the time Form I-140 is approved, to employ the beneficiary upon adjustment. Therefore, it is possible for a noncitizen to qualify for the provisions of Section 106(c) even if he or she has never been employed by the prior petitioning employer or the subsequent employer. While working for the sponsoring employer at the time of the I-140 approval is the best evidence of intent, it is hoped that the BCIS will accept other forms of evidence that acknowledge the employer’s intent to hire the beneficiary in the future.
While the Yates memo provides useful guidance on the application of Section 106(c) in the context of a concurrent I-140/I-485 filing, it leaves several questions unanswered. For instance, it does not define what constitutes a "similar occupational classification." Would a Programmer-Analyst who now has become the Project Manager of a programming project be considered to be in a "similar occupational classification" for purposes of Section 106(c)?
This writer has also noticed that certain BCIS officers tend to treat the new employer as a "petitioner" and bestow, ultra vires the statute, the same responsibilities as it would to the original petitioner. Often times the new employer entity is required to submit its tax returns, and in one BCIS office, many a new employer is required to report along with the noncitizen for the adjustment interview. There is no requirement in Section 106(c) that the new employer be treated as the new sponsor. Indeed, Section 106(c) also does not require that the noncitizen be paid the same wage as the wage indicated in the underlying labor certification or Form I-140 petition.
It is hoped that the BCIS generously interprets Section 106(c) when promulgating regulations implementing Section 106(c), and takes into account that Congress intended to give flexibility to foreign national employees who would otherwise remain bound to the same position or employer in the event of governmental delays.
See Yates, "Continuing Validity of Form I-140 Petition in accordance with Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21)" (AD03-16), HQBCIS 70/6.2.8-P (August 4, 2003).
This refers to Sections 203(b)(1)(B)(Outstanding Professors and Researchers), 203(b)(1)(C) (Multinational Executives/Managers), 203(b)(2) (Aliens who are members of the professions holding advanced degrees or with exceptional ability) and 203(b)(3) (skilled workers, professionals, and other workers).
 Cronin, "Initial Guidance for Processing H-1B Petitions as Affected by the American Competitiveness in the Twenty-First Century Act (Public Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106-396)," HOPGM 70/6.2-8 (June 19, 2001), reprinted in 78 Interpreter Releases 1108-17 (July 2, 2001).
 See 4. 8 C.F.R. Sections 204.5(n) and 245.2(a)(2)(i).
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or firstname.lastname@example.org.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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