Grandfathering Under §245(i) Is Clarified by USCIS: A Broad And Narrow Simultaneous Effect
Ever since the sunset of §245(i) on April 30, 2001, conflicting U.S. Citizenship and Immigration Service (hereinafter “USCIS”) interpretations of the grandfathering benefits have plagued immigration practice. From the “coupon” rule that emerged in and around 2002, which stated that §245(i) could only be used once, to variations of the same theme, the grandfathering provision has been played like musical chairs over the last few years. On March 9, 2005, a new memorandum with an aim to clarify the eligibility requirements of §245(i) grandfathering was released by William R. Yates, USCIS Director of Operations. This article will analyze the new policy guidance and discuss what effect its intended broadening scope actually achieves. The analysis will also venture into areas not addressed in the memo and what effects such omission will have on affected individuals.
Prior to 1994, individuals that sought to adjust their status to that of legal permanent resident on the basis of one of the qualifying classifications were required to prove they were (1) inspected and admitted or paroled into the U.S., (2) eligible for the immigrant visa, absent any grounds of inadmissibility; and (3) subject to an immigrant visa that was immediately available. Individuals, other than immediate relatives - and in some cases special immigrants - were barred from the discretionary benefit of adjustment of status if applicants fell into one of several categories including, the last entry as an alien crewmen, an alien in transit without a visa, the alien worked without authorization, or failed to maintain legal status, or if the alien was deportable. Adjustment-barred individuals had to process their legal permanent residence applications in their home countries at the U.S. Embassy or Consulate, which was costly and burdensome to applicants.
Section 245(i) of the Immigration and Nationality Act (hereinafter “INA”) emerged onto the immigration law landscape in 1994 to allow adjustment of status for those who entered the U.S. without inspection and those barred under §245(c) of the INA by payment of a fine of $1,000, in addition to the regular filing fees. The provision was scheduled to sunset on September 30, 1997. An extension to November 26, 1997 was agreed upon by the U.S. Congress culminating in a compromise, which permitted the indefinite grandfathering of petitions filed under INA §204 or labor certifications if filed by January 14, 1998. Considerable lobbying efforts finally compelled Congress to act and a further extension of §245(i) through the Life Act Amendments of 2000 was achieved. The new law extended the life of §245(i) until April 30, 2001. However, to qualify for this extended benefit, principal applicants in preference petitions or labor certifications filed after January 14, 1998 but before April 30, 2001 had to also show physical presence in the U.S. on December 21, 2000 - the date of enactment of the Life Act Amendments.
In the months and years after the sunset of §245(i), USCIS (and its legacy Immigration and Naturalization Service, and Bureau of Citizenship and Immigration Service) sought to narrow the grandfathering benefit through a variety of official and unofficial interpretations. What made it most frustrating to practitioners and clients was that the interpretations were not uniform. There was no set universal policy for the entire agency to follow. The result became uneven adjudication of §245(i) cases throughout the U.S. The new memorandum by William Yates contains the commendable purpose of establishing a national standard for adjudications, one that is broader than what has been disseminated by the USCIS (and its legacy identities) in the past. But, as in any USCIS policy guidance, there are some questions that remain unanswered.
II. THE GRANDFATHERING CLARIFICATION MEMO
The new policy memo begins by broadening the purview of 245(i). According to Yates, the benefits of 245(i) will apply “(1) Once an alien meets the requirements for grandfathering under 8 C.F.R. §245.10, the alien continues to be grandfathered until the alien adjusts status.” Second, a “grandfathered alien is not limited to seek adjustment of status solely on the basis of the qualifying immigrant visa petition or application for labor certification that initially grandfathered the alien. The grandfathered alien may also seek to adjust status on any other proper basis for which the alien is eligible.” (Emphasis added). Finally, Yates states that “until a grandfathered alien adjusts status, there is no limit to the number of applications the grandfathered alien may file for adjustment of status under section 245(i) provided that the alien meets all of the requirements of 8 C.F.R. 245.10, including payment of the $1000 surcharge for every application filed.” Thus, the purpose of this memo is to define what other “proper basis” for grandfathering exists.
To be grandfathered, the regulations require the applicant to have filed a qualifying immigrant petition or application for labor certification on or before April 30, 2001; that the application was “approvable when filed” and properly filed;  and include evidence of physical presence on December 20, 2000 for petitions filed after January 14, 1998 but before April 30, 2001. The permanent nature of the grandfathering benefit is illustrated in 8 C.F.R. §245.10(i):
“The denial, withdrawal, or revocation of the approval of a qualifying immigrant visa petition, or application for labor certification, that was properly filed on or before April 30, 2001, and that was approvable when filed, will not preclude its grandfathered alien (including the grandfathered alien's family members) from seeking adjustment of status under section 245(i) of the Act on the basis of another approved visa petition, a diversity visa, or any other ground for adjustment of status under the Act, as appropriate.”
Consistent with this regulatory provision, Yates states that even if the adjustment application has been denied, withdrawn, or abandoned, the grandfathered alien does not lose his 245(i) benefit and may apply for a new adjustment on a different basis, e.g., by virtue of an I-130 family petition, or through the diversity lottery as long as the requirements of 8 C.F.R. §245.10 are met. The basic principles in the new policy guidance purport to extend the grandfathering protection through multiple filings by a grandfathered principal alien. It affirms the “alien based” reading of §245(i). However, the phrase “any other proper basis” in the memo spells trouble for multiple filings, as indicated above, as it affects mostly derivatives aliens.  As will be discussed below, the new memo subdivides grandfathering into four (4) subcategories, which results in a narrowing effect from the broad intent suggested by the above principles.
A. Unlimited Grandfathering
The first subcategory of grandfathered aliens under Yates’ analysis involves circumstances where the spouse or child relationship existed at the time the qualifying petition or application was filed. These individuals retain their grandfathering benefit regardless of whether the child turns 21 or whether the principal alien and the spouse subsequently divorce. In this scenario, the derivative aliens can seek their own independent family, business-based petitions, diversity visa lottery, or labor certification applications and ultimately file for adjustment of status under §245(i).
Yates illustrates this point through a fact pattern. If principal alien “A,” who is married to alien “B” and has a child “C” in wedlock, files a labor certification in 2000, but then divorces in 2003, the eligibility for independent grandfathering of the derivative spouse and child continues beyond the termination of the relationship. If these derivatives win the diversity visa in 2003, both are grandfathered and can adjust status to permanent resident independently of the principal alien.
The memo mentions (in passing) the Child Status Protection Act (CSPA) and how unlimited grandfathering does not affect an aging-out child. Although the CSPA is outside the scope of the memo, it is noteworthy to remind readers of its importance in analyzing and strategizing cases where a derivative child is involved. Under unlimited grandfathering, if spouse “B” wins the diversity visa lottery in 2003 and child “C” has already turned 21, the aged-out child would lose his derivative benefits but could apply for an immigrant visa on his own, through another family, employment-based or diversity lottery. The individuals in this subcategory of §245(i) grandfathering are generally the most benefited the most from the new policy guidance.
B. Limited Grandfathering
The second kind of grandfathering subcategory narrows the scope of the benefit. The memo directs that where the spouse or child relationship is established subsequent to April 30, 2001, and continues to exist through the adjustment of the principal alien, the spouse or child are not completely grandfathered. These derivatives are not permitted to seek the grandfathering benefit on an independent basis, but can only adjust status as dependents of the principal alien.
Yates’s illustration concerns the filing of a labor certification by “A” in 2000, while unmarried. In 2002, “A” marries “B” and have child “C.” Form I-140 is filed and approved in 2004. Even though “B” and “C” are after-acquired derivatives, the new guidance permits them to adjust status under 245(i), but only as dependents of the principal alien.
However, under this subcategory the following scenario would not be permitted. Let’s say “A” is the beneficiary of a qualifying labor certification and is unmarried at the time. In 2003, he marries “B.” In 2004, “B” develops an independent path to a green card for both “B” and “A,” perhaps a diversity lottery win. Under the Yates policy guidance, “B” cannot seek her independent path to a green card for her and her spouse because “B” can only use her 245(i) grandfathering as a derivative spouse of “A,” not as a principal alien. Thus, if “A”’s case is weak because of a preliminary finding of availability by the Department of Labor, or poor financials in an I-140 ability to pay context, “A” will be forced to risk a denial of the case instead of being permitted to seek adjustment of status through the spouse’s diversity lottery win. It hardly seems fair.
Assuming no visa retrogressions  apply, would concurrent filing of the adjustment of status by “A” with “B” as derivative, and “B”’s independent basis with “A” as her derivative cure the limitation? It is unclear. Under these facts, it seems that the new USCIS clarification is inconsistent with the permanent nature of grandfathering under 8 C.F.R. §245.10(i). Further clarification by USCIS on this issue should be made.
C. Terminable Grandfathering
A more narrow interpretation of the grandfathering benefit involves the creation of the qualifying relationship subsequent to April 30, 2001 and the termination of that relationship prior to the adjustment of the principal alien. Under these facts, Yates remarks that the derivatives are not grandfathered and cannot proceed as dependents or through an independent basis of adjustment of status. In essence, the termination of the relationship through divorce also terminates the §245(i) eligibility for the after-acquired spouse and child.
The illustration used involves the filing of an I-130 for principal “A,” who is unmarried. In 2002, “A” marries “B.” In 2003, an I-140 is filed for “A” and is approved. An adjustment of status is filed in 2004 by “A” and “B.” While Form I-485 is pending, “A” and “B” obtain a divorce. “B” subsequently wins the diversity visa lottery. The memo makes clear that “B” cannot pursue his own adjustment of status based on the diversity lottery win because “B” married “A” after the sunset of 245(i). Furthermore, “B” would otherwise be protected under Limited Grandfathering; however, by virtue of the divorce during the pendency of the I-485, “B” also loses the Limited Grandfathering benefits. Thus, 245(i) benefits for these derivatives are terminable.
D. Prohibited Grandfathering
The memo touches upon a scenario that perhaps obviates the need for extensive elaboration. A grandfathered alien who obtains legal permanent residence cannot serve as a basis for his derivatives to adjust under §245(i) if the relationship was created post approved adjustment. The example used relates to an individual who files a labor certification in 1999 while unmarried. Form I-140 is filed and approved in 2001. The principal obtains legal permanent resident status in 2003. In 2004, he marries and has a child with his new spouse. Because the relationship was created both after April 30, 2001 and the time the principal’s adjustment of status was approved, the derivatives cannot apply for adjustment of status under 245(i). These derivatives are not even eligible for “accompanying” or “follow-to-join” under INA §203(d).
Yates’s analysis makes clear that there are no limits to the number of adjustment of status applications, or deadlines to file them, absent the above limitations or restrictions for derivatives. Further, the life of 245(i) grandfathering ends upon achieving the benefit the section is intended to protect, which is legal permanent resident status.
III. SUBSTITUTIONS OVERLOOKED
Substitution of aliens in labor certification contexts used to be the province of the Department of Labor (DOL). However, on March 7, 1996, jurisdiction of substitutions was delegated by the DOL to legacy Immigration and Naturalization Service. Today, substitutions of aliens are processed by USCIS. Petitioner files Form I-140 on behalf of the substituted alien along with Form ETA 750-Part B. The Petitioner must request USCIS to withdraw the previously filed I-140 for the original alien beneficiary, so that two aliens do not benefit from the same certified labor certification. In recent years, substitutions have been strategically important for employers and aliens in light of the weakened economy, which caused a high degree of lay-offs and corporate down-sizing. Aliens who lost their sponsored jobs could be substituted for other aliens in other companies that moved on to new jobs. What resulted was the increase availability of foreign workers to fill approved labor certification positions. The legacy immigration agencies have traditionally given an employer "ownership" of a certified labor certification. However, neither the statute nor the regulation at 8 C.F.R. §245.10(i) contemplates giving an employer the power to "take away" an alien's grandfathering benefits. As stated earlier, the determination of who is grandfathered has been always based on an "alien-based" reading of Section 245(i). However, under the substitution regulation at 8 C.F.R. §245.10(j), an employer can essentially "take away" grandfathering benefits without notice. The regulation states:
“Only the alien who was the beneficiary of the application for the labor certification on or before April 30, 2001, will be considered to have been grandfathered for purposes of filing an application for adjustment of status under section 245(i) of the Act. An alien who was previously the beneficiary of the application for the labor certification but was subsequently replaced by another alien on or before April 30, 2001, will not be considered to be a grandfathered alien. An alien who was substituted for the previous beneficiary of the application for the labor certification after April 30, 2001, will not be considered to be a grandfathered alien.”
When this regulation was proposed, the American Immigration Lawyers’ Association (AILA) commented:
“Section 245.10(j) of the interim regulation provides that an alien who was previously the beneficiary of an application for labor certification but was subsequently replaced by another alien will not be considered to be grandfathered. Moreover, the regulation further provides that an alien who was substituted for the previous beneficiary of the application for labor certification after April 30, 2001, will not be grandfathered. Thus, no one would be grandfathered.
To be consistent with the alien-based reading of the statute, the alien should be grandfathered if he or she was the beneficiary of a properly-filed application for labor certification filed on or before April 30, 2001, regardless of substitution. The regulation should also recognize that a visa petition will be required to be filed for the substituted alien beneficiary; and if the alien is the beneficiary of a visa petition on a substituted application for labor certification filed on or before April 30, 2001, the visa petition will serve to grandfather the alien.”
Section 245.10(j) of the regulations discusses two instances where substitutions can occur, namely, prior to April 30, 2001 and subsequent to that date. The Yates memo on §245(i) unfortunately (and perhaps unintentionally) overlooks critical substitution issues affecting labor certification cases. The unlimited nature of §245(i) grandfathering seems to be inconsistent with the regulations on substitution.
A. Substitutions Before April 30, 2001
Suppose alien “A” files for labor certification in 1998 and is approved in 2000. He then files Form I-140. Upon approval, he files for adjustment of status. However, before adjusting status “A” leaves the employer. The employer substitutes him for alien “B” using the original labor certification for alien “A.” Believing that §245(i) remained with him, alien “A” files another labor certification after April 30, 2001. When his adjustment of status is adjudicated, USCIS denies the application on the basis of 8 C.F.R. §245.10(j). In this case, the employer can actually “take away” grandfathering benefits, which is in direct conflict with the alien-based reading of §245(i). Would the result be the same if “A” ports to a new employer under AC21 and the original employer substitutes “A” with “B” on the labor certification?
Perhaps the drafters intended to say that the new alien would not be grandfathered, absent an independent basis for 245(i) grandfathering. If we look at the Yates memo’s subcategories of §245(i) grandfathering, under the “Unlimited Grandfathering” subcategory a derivative could substitute an original alien and proceed to adjust status independently. But under subsection (j) of the regulation, she could not. Under “Limited Grandfathering,” the derivative could not substitute anyone at all because her 245(i) grandfathering benefit must always be tied to her spouse’s case as a derivative. Similarly, for those in the “Terminable Grandfathering” subcategory, substitution would be out of the question because of “A”’s status as an after-acquired derivative and the terminable benefits that stem from a divorce prior to adjustment of status. Finally, derivatives in need of 245(i) that fall under “Prohibited Grandfathering” could not substitute any alien in a labor certification because no post-LPR grandfathering is permitted.
B. Substitutions After April 30, 2001
USCIS has denied substitution cases stating that “since the substitution occurred after April 30, 2001, [the alien], as the substituted alien, [is] not eligible to grandfather the priority date” of the original petition. “The alien originally named on the ETA 750 retains the right to use the priority date to adjust under 245(i).”
Quite often, USCIS does not even provide a confirmation that an independent basis for grandfathering will cure the adjustment of status eligibility defect. In such cases, the substituted alien must file a copy of the substituted alien’s independent certified labor certification (subject to the four subcategories outlined in the memo), or an official letter from either the State Workforce Agency (SWA) or the DOL confirming that he or she was independently grandfathered through a qualifying application or petition prior to April 30, 2001.
USCIS disregards the fact that many SWAs, especially those with large metropolitan areas like New York and New Jersey, never issued filing receipts for labor certifications due to limited resources. In these states, the ability to track filed cases was virtually impossible until the time when the case was actually adjudicated by SWA and a notice was generated requiring action by the employer. As a result, substitution cases in these states lacked ‘official’ proof of filing. Practitioners must therefore obtain official proof of filing a qualifying petition (albeit Form I-797 for employment and family-based immigration petitions with USICS and its legacy agencies, and/or SWA confirmation letters or receipt for labor certifications) on or before April 30, 2001 before attempting to file a substitution case. Some SWAs are helpful in securing this information by mail or fax if the requestor is the attorney of record. If not, the practitioner must seek the assistance of the original employer and/or attorney of record to obtain the needed proof.
IV. NECESSARY SOLUTIONS
A reading of the entire regulation at 8 C.F.R. §214.10 seems to contradict subsection (j). Even the new Yates confirmation of the permanent nature of 245(i) grandfathering is inconsistent with the substitution regulation. The purpose of the regulation is to make grandfathering under 245(i) a permanent benefit, regardless of the initial petition’s withdrawal or denial. Section 245(i)’s permanent benefits should also contemplate substitutions of aliens.
Mr. Yates was the featured speaker at the April 2005 AILA New York Chapter Monthly Meeting. By written comment and question, this writer pointed Mr. Yates to the clear inconsistency regarding the regulation on §245(i) - and the new memo - with the regulation on substitution; when asked whether new guidance or rulemaking was planned to reconcile the inconsistencies of the alien-based reading of §245(i) versus the employer-owned reading of the substitution regulation, Mr. Yates responded that he was not familiar with the substitution regulation and graciously agreed to take the issue back with him for review.
With regard to obtaining official proof of the filing of a labor certification (in the context of 7th year H-1B extensions), Mr. Yates remarked that policy guidance had been drafted to list which evidence would be suitable to establish eligibility. In the meantime, Mr. Yates urged AILA to use the “best evidence rule.” Adjudicators are expected to be instructed to accept the best evidence available until the memo on the subject is published. Such a memorandum should also be extended to proving eligibility to 7th Year H-1B extensions, but also §245(i) grandfathering.
Perhaps through rulemaking, an amended substitution regulation should follow somewhere along these lines:
“Only the alien who was the beneficiary of the application for the labor certification on or before April 30, 2001, will be considered to have been grandfathered for purposes of filing an application for adjustment of status under section 245(i) of the Act. An alien who was previously the beneficiary of the application for the labor certification but was subsequently replaced by another alien on or before April 30, 2001, will not be considered to be a grandfathered alien, unless the substituted alien was independently grandfathered prior to April 30, 2001. An alien who was substituted for the previous beneficiary of the application for the labor certification after April 30, 2001, will not be considered to be a grandfathered alien, unless the substituted alien was independently grandfathered prior to April 30, 2001.” (Emphasis added).
Alternatively, a memorandum clarifying labor certification substitutions and 245(i) should be issued by USCIS. A new memo can synthesize the 245(i) memo’s basic principles with the substitution issues. In the meanwhile, this issue may be ripe for litigation absent further clarifications by USCIS.
The new Yates guidance on 245(i) is in spirit a welcomed effort because it lifts limitations and broadens 245(i) reach to qualifying principal aliens and some derivative relatives. However, the memo does create a simultaneous narrowing effect to after-acquired derivative relatives by limiting their eligibility to adjust status under 245(i) through an independent basis. It further misses the mark by omitting any discussion on substitution of aliens and the relevant regulation, which is inconsistent with the statutory grandfathering element. The memo seems to broaden the playing field for 245(i) aliens, yet it narrows its reach for others.
Perhaps an amendment to the substitution regulation or a new memo focusing entirely on substitutions would clarify the unresolved issues discussed in this article and others that remain. The alternative will be a rise in litigation against USCIS for its inconsistent regulations and policies that ultimately have adverse effects on the aliens whom the law was intended to protect.
 Memorandum by William R. Yates, “Clarification of Certain Eligibility Requirements to an Application to Adjust Status under Section 245(i) of the Immigration and Nationality Act,” HQOPRD 70/23.1 (March 9, 2005).
 Immigration and Nationality Act (“INA”) §245(a).
 INA §245(c). The bar against adjustment of status under this category does not apply to immediate relatives or special immigrants.
 With the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) (enacted as Division C of the Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009, 3009-546), additional obstacles we set for individuals who remained in the U.S. in unlawful status, such as the three and ten year bars of inadmissibility. See, INA §212(a)(9)(B).
 Pub. L. No. 103-317, §506(b), 108 Stat. 1724 (1994).
 8 C.F.R. 245.10(c)(1). Children under 17 were exempt from the $1,000 fee. In addition, certain beneficiaries under Family Unification are exempt from the $1,000 surcharge. See, 8 C.F.R. §245.10(c)(2) and (3).
 Pub. L. No. 105-19, §111 (Nov. 26, 1997). Although derivatives and follow-to-join aliens continued to benefit from the law, aliens with pending diversity visas or special immigrants petitions filed with the Department of State, were not so fortunate. The compromise was limited to those petitions filed with the Attorney General only.
 Title XV, Division B, Consolidated Appropriations Act of 2001, Pub. L. No. 106-554, §§1501-1502, 114 Stat. 2763 (Dec. 21, 2000). Pursuant to §1506 of this law, the effective date of the amendments is the date of enactment. Under this statute, diversity visa filings could now be used to grandfather the alien.
 Id. at §1502(a)(1)(D). It is noteworthy to remember that 245(i) grandfathering does not establish a right to remain in the U.S. It only permits a qualified alien to adjust status in the U.S. rather than venture out of the U.S. into consular processing and face the 3 and 10 year bars of INA §212(a)(9)(B).
 8 C.F.R. §245.10(a)(1).
 8 C.F.R. §245.10(i). This provision seems to suggest that even the derivatives could seek independent benefits without any limitation. As the analysis of the memo will show, Yates does not agree.
 8 C.F.R. § 245.10(a)(1)(i).
 8 C.F.R. § 245.10(a)(3) and 8 C.F.R. § 245.10(a)(2). For purposes of establishing the “approvable when filed” and “proper filing” elements in labor certification cases, see 20 C.F.R. § 656.21(d) under the pre-PERM rules. On March 28, 2005 the PERM regulations go into effect and the section outlining the basic labor certification process under the new PERM system will be moved to 20 C.F.R. § 656.17. See also, 69 Fed. Reg. 77,326 (December 27, 2004), reproduced and discussed in 10 Bender’s Immigr. Bull. 267 (February 15, 2005).
 8 C.F.R. § 245.10(a)(1)(ii). For a non-exhaustive list of the type of evidence USCIS will accept for purposes of establishing the physical presence requirement, see 8 C.F.R. § 245.10(n)(2).
 Memorandum by Robert L. Bach, “Accepting Applications for Adjustment of Status Under Section 245(i) of the Immigration and Nationality Act,” HQ 70/23.1-P, HQ 70/8-P (April 14, 1999), reproduced in 4 Bender’s Immigr. Bull. 465 (May 15, 1999).
 INA § 245(i)(1)(B). Derivative aliens are a spouse or children under 21 of the principal beneficiary eligible for a visa under INA §203(d).
 Pub. L. 107-208, 116 Stat. 927 (Aug. 6, 2002). The CSPA was enacted to provide relief to children who “age-out” as a result of USCIS adjudication delays of visa petitions and asylum and refugee applications. The definition of a “child” under immigration law refers to an unmarried individual under 21 years of age. See, INA §101(b)(1); 8 U.S.C. § 1101(b)(1). Although the definition remains unchanged under CSPA, the law does alter the method of calculating the child’s age. If a child turned 21 while his or her application for a green card was pending, the child would “age out” and thus lose eligibility to adjust status. With the CSPA however, child’s age is locked at an earlier date in the process, thus preserving the status of “child” for those who would otherwise age out. For further information on the CSPA and USCIS interpretations of its provisions see, Memorandum by Johnny N. Williams, “Child Status Protection Act,” (Sept. 20, 2002), reproduced in 7 Bender’s Immigr. Bull 1278 (October 15, 2002). See also, Memorandum by Johnny N. Williams, “The Child Status Protection Act – Memorandum Number 2,” HQADN 70/6.1.1 (Feb. 14, 2003), posted on AILA InfoNet at Doc No. 03031040 (March 10, 2003).
 As of January 1, 2005, employment-based third preference category for nationals of India, Mainland China, and Philippines were retrogressed to January 1, 2002. See, Memorandum by William R. Yates, Associate Director for Operations, “Regression of E31 and E32 Visa Numbers for Applicants from Mainland China, India and Philippines; Rescission of March 31, 2004 Policy Memo re: Concurrent Adjudication of Concurrently Filed Form I-140s and I-485s,” HQOPRD 70/11.1 (December 29, 2004). As of the date of this article, the retrogression has moved to April 1, 2002, posted on AILA InfoNet at Doc. No. 04122862 (December 28, 2004).
 See, Memorandum by Louis D. Crocetti, INS Associate Commissioner, HQ 204.25-P (March 7, 1996), posted on AILA InfoNet at Doc. No. 96030790 (March 7, 1996). See also, Memorandum by Barbara Ann Farmer, Administrator, Department of Labor Office of Regional Management, No. 37-95 (May 4, 1995)(before approval of an adjustment of status application, there are no limits to the number of substitutions that can be made), posted on AILA InfoNet (May 9, 1995).
 See, Memo by Bach, supra.
 8 C.F.R. §245.10(j).
 “AILA Comment on INS 245(i) Regulations,” posted on AILA InfoNet at Doc. No. 01081734 (August 17, 2001).
 This scenario assumes alien “A” cannot exercise permanent portability under the §106(c) of the American Competitiveness in the 21st Century Act (AC21). Under AC21, alien “A” could port to the new employer as long as the job was the same or similar, the I-140 was approved and the I-485 was pending at least 180 days. If so, no new labor certification application would be needed.
 See, Bach memo, supra.
 SWAs were previously known as State Employment Security Agencies – SESAs.
 8 C.F.R. §245.10(i).
© 2005 by Rómulo E. Guevara. A slightly different version of this article will be published in Bender's Immigration Bulletin in May 2005.
Rómulo E. Guevara is a senior attorney with Neil A. Weinrib & Associates, in New York City, where he focuses on complex business immigration issues, including the ability to pay, labor certifications, and multinational executives and managers, in both large corporations and small businesses. Mr. Guevara currently serves on the AILA New York Chapter DOL Liaison Committee, and contributes articles to Interpreter Releases, AILA's Immigration Law Today, AILA's Immigration & Nationality Handbook, Bender's Immigration Bulletin, and ILW.com. He received his undergraduate degree in 1993 from Long Island University and his law degree in 1996 from Hofstra University School of Law in 1996. Mr. Guevara is originally from El Salvador and has been practicing immigration law since 1997.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.