"Adjustment Of Status In Immigration Practice Today"
Session 1 held on March 23, 2006
From Romulo E. Guevara
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From Dinesh Shenoy
INA 245(a) - main statute for most adjustments of status
INA 245(a)(3) - the rule requiring an immigrant visa number available on the Visa Bulletin at the time of I-485 filing
DOL figure that total number of backlogged Labor Certs is approx.
355,000 - 71 Fed. Reg. 7656, 7658 (Feb. 13, 2006), available online at
DOL predicting elimination of Labor Cert Backlog by September 30, 2007
9 FAM 40.1 N8 - "cross-chargeability" rule allowing derivative spouse's more favorable country of chargeability (e.g., Japan) to be invoked by a principal alien worker spouse chargeable to a backlogged country (e.g., China)
Child Status Protection Act (CSPA) Section 3 (now INA 203(h)) - rule that prevents age-out of derivatives in SOME employment-based cases
8 CFR 204.5(e) - retention of priority date provision
INS Memorandum dated May 9, 2005 titled "Transferring Section 245 Adjustment Applications to New or Subsequent Family or Employment-Based Immigrant Visa Petitions" (reprinted at 77 Interp. Rel. 716, May 26, 2000) - applying 8 CFR 204.5(e).
20 CFR 656.5(b) - defining aliens of "exceptional ability" in the sciences or arts or performing arts as belonging to "Schedule A" along with professional nurses and physical therapists.
Division B, Title V, Section 502 of the "Emergency Supplemental
Appropriations Act" of 2005, Pub. L. No. 109-13 (enacted May 11, 2005)
20 CFR 656.15(d) & 8 CFR 204.5(k)(3)(ii) - DOL and USCIS regulations addressing elements that show an alien is of "exceptional ability"
AC21 sec. 106(a) as modified by 2002 DOJ Authorization Act, Pub. L. No.
107-273, sec. 11030A(a), 116 Stat. 1836-37, available online at
INA 204(j) - portability provision (also referred to as "permanent portability" or "I-140 portability")
USCIS Memorandum dated May 12, 2005 - interim guidance on AC21 -
available on the USCIS website at
USCIS Adopted Decision 06-0001 (concerning recapturing time outside USA
towards 6-year limit on H-1B status) - available on the USCIS website at
USCIS Adopted Descision 06-0002 (concerning 204(j) portability where after 140/485 concurrently filed alien ported and then 140 was denied)
Matter of Perez-Vargas, 23 I&N Dec. 829 (BIA 2005) (Immigration Judges have no authority to determine whether the validity of an alien's approved employment-based visa petition is preserved under section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j) (2000), after the alien's change in jobs or employers.)