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Permanent Portability In Removal Returns To The 4th Circuit: What Is Next For Perez-Vargas?

by Rómulo E. Guevara and Tiffany V. Biason

In a previous article ("'USCIS Adopted Decisions': Latest USCIS Efforts to Establish Uniform Policy" (November 2005)), the authors discussed the new mechanism of the 'adopted decision' that was unveiled by former US Citizenship & Immigration Service ("USCIS") Acting Deputy Director Robert C. Divine, regarding recapture of time spent outside the US in H or L status, and whether an approved I-140 was required as one element of permanent portability under The American Competitiveness in the 21st Century Act ("AC21"), Pub. Law 106-313. The adopted portability decision made it clear that an approved I-140 was a required element, in addition to a pending I-485 for 180 days.

The article also discussed In re Minor Humberto Perez-Vargas, 23 I & N Dec. 829 (BIA 2005), a new Board of Immigration Appeals ("BIA") decision, which held that Immigration Judges ("IJ") lacked jurisdiction to determine whether a job was "same or similar" for permanent portability purposes while the employee was in removal proceeding. The authors urged the DHS to clarify and guide the public into more sensible policy than Perez-Vargas. Today, the challenge of interpreting and implementing § 106(c) of AC21 (which amended and added Section 204(j) of the Immigration and Nationality Act ("INA")) has continued to generate reaching judicial scrutiny.

Section 204(j) of the INA states:

JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE- A petitioner under subsection (a)(1)(D) 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 a similar occupational classification as the job for which the petition was filed.

In Perez-Vargas, the BIA dealt with the issue of whether immigration judges have jurisdiction to determine whether the validity of an alien's approved employment-based petition is preserved under INA §204(j). The respondent had overstayed his non-immigrant visa; he no longer worked for the original employer; and had an approved I-140 immigrant petition. The respondent sought to exercise permanent portability with a new employer while in removal proceedings. The IJ refused to consider whether the new job was of the "same or similar" classification under INA §204(j) and denied the adjustment of status on jurisdictional grounds.

On appeal, the BIA held that immigration judges do not have jurisdiction to decide whether the validity of a foreign national's approved employment-based immigrant petition is preserved under INA §204(j).[1]  The BIA reasoned that the Department of Homeland Security (DHS) was in a better position to use its expertise in evaluating the truth of the assertions made on visa petitions. To do otherwise would "constitute a substantial and unwarranted intrusion into the district director's authority over the adjudication of visa petitions."[2]

The Respondent in Peres-Vargas appealed the BIA's decision to the Fourth Circuit U.S. Court of Appeals. On February 22, 2007, the Court published its opinion in Minor Humberto Perez-Vargas v. Alberto R. Gonzales, 05-2313 (4th Cir. Feb. 22, 2007).  In a welcomed ruling, the Court disagreed with the BIA's decision and vacated it. The decision states that IJs do have power to make the determination of whether a new job is "the same or similar" to the original job offered. The Court found that the BIA erroneously viewed the issue as a question of jurisdiction to adjudicate rather than jurisdiction to make a factual determination.

The Court explains that INA §204(j) is not a jurisdictional statute, nor does it provide for an independent administrative process.  The permanent portability provision must apply to the individual as an entitlement for which Congress vested the Attorney General with jurisdiction to adjudicate.[3] The Attorney General, in turn, has vested IJs with exclusive jurisdiction to adjudicate any application for adjustment of status when an alien has been placed in removal proceedings.[4] Therefore, the IJ's exclusive jurisdiction to adjudicate adjustment of status applications in removal proceedings necessarily incorporates the jurisdiction to make § 204(j) determinations, which are matters of "factfinding incidental to the adjustment of status process."[5] A ruling to the contrary would prevent the IJ from carrying out the statutory mandate of determining if a visa is immediately available in permanent portability cases.

Moreover, the Court examined the plain meaning of the statute and found  that § 204(j) makes no distinction between aliens who must file adjustment applications with a Department of Homeland Security (DHS) service center and those who must file before an IJ in removal proceedings.  Section 204(j) of the INA broadly applies to an "individual whose application for adjustment of status … has been filed and remained unadjudicated for 180 days or more."

The Court explains that the BIA's interpretation would have the effect of creating a distinction between DHS adjustment applications and IJ adjustment applications that does not exist. If this distinction were to exist, aliens would attempt to obtain administrative closure of their removal proceedings from the IJ and beg DHS to determine the continuing validity of his visa petition pursuant to § 204(j).  If DHS refuses administrative closure, as in this case, the alien would be unable to avail himself of the relief provided in § 204(j).  

For example, in a nonprecedent Michigan case decided on the eve of the 4th Circuit's Perez-Vargas case, the BIA remanded the case to the IJ to provide respondent with reasonable opportunity to obtain a ruling from DHS regarding eligibility for adjustment pursuant to INA §204(j).[6] Still, no process, procedure, or timeline was suggested by the BIA, thus leaving the alien in legal limbo on a statutory entitlement.

At the end of the day, the 4th Circuit decision is a welcome development in a troubling area of law. Granted, in comparison to the vast number of employment-based cases filed with DHS, those that will face an IJ and request permanent portability will be few in numbers. But such a reality does not justify averting attention away from these cases, or limiting the scope of the law from its plain meaning. The law must be applied evenly where no statutory distinction exists. The BIA is expected to say that the effect of the latest Perez-Vargas decision will be limited to cases originating in the 4th Circuit. However, practitioners outside the 4th Circuit must argue to IJs and federal courts that the BIA's original decision is vacated and that its use is inappropriate.

What will happen to permanent portability in removal proceedings in the rest of the country remains to be seen. With the 4th Circuit's stern pronouncement, other circuits may or may not follow the same rationale. In the interim, there are several options the government should consider.

First, the Attorney General should do the right thing and vacate the BIA's Perez-Vargas as a matter of uniform policy and save other aliens and the agency from needless litigation over an issue that was clearly wrongly decided by the BIA and the original IJ. Alternatively, he should devise a similar mechanism as the adopted decision that USCIS uses and implement the 4th Circuit's ruling nation-wide. Otherwise, litigation in other circuits will remain the order of the day. Practitioners are encouraged to seek the assistance of the American Immigration Lawyer's Association (AILA) and/or the American Immigration Law Foundation (AILF) as amicus curiae[7] in litigation in other Circuit Courts. Perhaps this conflict will ultimately have to be resolved by the U.S. Supreme Court, which may not be favorable to immigrants given the current makeup of the Court and its recent immigration decision history.

Finally, rather than focus on litigation, DHS should focus on the regulatory remedy. The continuous absence of AC21 regulations since the enactment of the statute in 2000 is a major contributing factor to the lack of uniform interpretation and practices in this and every area of AC21 benefits. USCIS has published a series of memoranda addressing AC21 ambiguities and clarifications in an attempt to establish consistency and provide practitioners with much needed guidance[8].  However, even memoranda are not afforded the authority of regulations. The lack of regulations at this late stage since AC21's enactment is an unjustifiable disservice to the individuals it sought to benefit.

An amendment to INA §204(j) will require an act of Congress, which should be included in this year's immigration reform legislation. Alternatively, the long awaited AC21 regulations could contain a provision that tracks §204(j). The regulation may read as follows:

PERMANENT PORTABILITY- Pursuant to Section 204(j) of the Act an individual whose application for adjustment of status has been filed with a Service Center of the Department of Homeland Security (DHS) or the Executive Office for Immigration Review (EOIR) and remained unadjudicated by either agency 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 a similar occupational classification as the job for which the petition was filed. Which ever agency has exclusive jurisdiction over the adjustment of status application shall make this determination. (Emphasis added)[9]

A subsequent regulation should also list the factors the DHS service centers and IJs can consider in deciding whether a new job classification is "the same or similar" as the job for which the application was originally filed. To this end, all aliens would benefit equally from the law.


[1] Matter of Aurelio, 19 I & N Dec. 458, 460 (BIA 1987)

[2] Matter of Arthur, 20 I & N Dec. 475, 479 (BIA 1992).

[3] 8 C.F.R. §1255(a)(2)-(3).

[4] 8 C.F.R. §1245.2(a)(1). This statement does not include those individuals who are arriving aliens.

[5] Perez-Vargas v. Gonzalez, at 6, citing 8 C.F.R. §1240.1(a)(1)(iv).

[6] Matter of X, (BIA Jan 29, 2007).

[7] AILF submitted an amicus brief in the 4th Circuit case, which helped the Court in making the right decision.

[8] See Interoffice Memorandum, "Interim Guidance for Processing Form I-140 Employment Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) Public Law (106-313)," by William R. Yates, Associate Director of Operations, USCIS, DHS, HQPRD 70/6.2.8-P (May 12, 2005); Interoffice Memorandum, "Interim Guidance for Processing Form I-140 Employment Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) Public Law (106-313)," by Michael Aytes, Acting Director of Domestic Operations,  HQPRD 70/6.2.8-P (December 27, 2005).

[9] This proposed language would focus on the jurisdiction for filing purposes, rather than where the application is ultimately adjudicated. There may be instances where a service center would remand an employment case to a local district office for a personal interview, or an IJ may opt to close proceedings and remand the matter to a service center or local district office for final adjudication for reasons not involving permanent portability. Such actions would not strip the service center or local office of jurisdiction to make §204(j) determinations if the need arises.

About The Author

Rómulo E. Guevara is a senior attorney with the Corporate Migration Practice Group of Littler Mendelson, PC in Phoenix, Arizona ( Rómulo's practice advisory articles analyzing the latest developments in immigration law have appeared in a wide variety of immigration law journals. He has also lectured at conferences and teleconferences for AILA and, and has served as Editor on recent publications by AILA and The National Employer. Rómulo graduated from Hofstra University School of Law in 1996 and has been practicing immigration law since 1997. He is originally from El Salvador.

Tiffany V. Biason is an associate attorney with the Corporate Migration Practice Group of Littler Mendelson, PC in San Jose, California. She obtained her undergraduate degree from Cornell University in 2001 and her law degree from University of Maryland School of Law in 2004. She is admitted to practice in both New York and New Jersey.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.