Cite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669
1 We acknowledge and appreciate the very helpful briefs submitted by the parties and
by amici curiae, the American Immigration Law Foundation and the American Immigration
Lawyers Association.
169
Matter of Jose MARCAL NETO, et al., Respondents
File A095 861 144 – Boston, Massachusetts
File A095 861 145
File A095 861 146
Decided January 21, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Immigration Judges have 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) (2006), after the alien’s change in jobs
or employers. Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), overruled.
FOR RESPONDENTS: Kevin R. Leeper, Esquire, Framingham, Massachusetts
AMICI CURIAE: Mary A. Kenney, Esquire, Washington, D.C.1
FOR THE DEPARTMENT OF HOMELAND SECURITY: Elena M. Albamonte, Appellate
Counsel
BEFORE: Board Panel: FILPPU and PAULEY, Board Members. Concurring Opinion:
GREER, Board Member, joined by PAULEY, Board Member.
FILPPU, Board Member:
In Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), we held
that Immigration Judges lack jurisdiction 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)
(2006), after the alien’s change in jobs or employers. Since our decision
in Matter of Perez Vargas, three circuit courts, including the United States
Court of Appeals for the Fourth Circuit, which has jurisdiction over Matter
of Perez Vargas, have rejected that case. Sung v. Keisler, 505 F.3d 372 (5th
Cir. 2007); Matovski v. Gonzales, 492 F.3d 722 (6th Cir. 2007); Perez-Vargas
v. Gonzales, 478 F.3d 191 (4th Cir. 2007). The respondents argue on appealCite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669
2 Pursuant to 8 C.F.R. § 1003.1(g) (2010), this case has been designated as a precedent
by the Board en banc.
3 The respondents’ claim is based on the lead respondent’s application for relief, and
we therefore refer to the lead respondent when we reference a single respondent. The other
respondents are the lead respondent’s wife and daughter.
170
that we should accept the reasoning of these cases and withdraw from Matter
of Perez Vargas.
We asked for briefing on this issue, and the parties are in agreement
that we should adopt the rationale set forth in the circuit court cases cited
above. We will sustain the respondents’ appeal and remand for further
proceedings. As more fully explained below, we overrule Matter
of Perez Vargas, and we now hold that Immigration Judges and the Board
of Immigration Appeals have jurisdiction to render a decision on the
portability of a job under section 204(j) of the Act.2 In other words,
Immigration Judges may determine whether an approved employment-related
visa petition, a Form I-140 (Immigrant Petition for Alien Worker), remains
valid when an alien changes his or her job but alleges that the new job
is similar to the original position.
I. FACTUAL AND PROCEDURAL HISTORY
The lead respondent, a native and citizen of Brazil, is the beneficiary
of an approved I-140 employment-based visa petition.3
He and his family filed
applications for adjustment of status with the United States Citizenship and
Immigration Services (“USCIS”) in 2002. Their applications were denied
in 2005 because, among other things, the USCIS determined that the lead
respondent was inadmissible pursuant to section 212(a)(6)(C) of the Act,
8 U.S.C. § 1182(a)(6)(C) (2000), for engaging in fraud. The respondents were
issued a Notice to Appear (Form I-862) by the Department of Homeland
Security (“DHS”) and renewed their applications for adjustment of status
before the Immigration Judge.
In a decision dated March 23, 2007, the Immigration Judge found the
respondents removable under section 237(a)(1)(B) of the Act, 8 U.S.C.
§ 1227(a)(1)(B) (2006), as aliens who remained in the United States longer
than permitted. However, the Immigration Judge determined that the DHS had
not sustained its burden of establishing the lead respondent’s removability
as an alien who was inadmissible under section 212(a)(6)(C)(i) of the Act for
obtaining an immigration benefit by fraud or willful misrepresentation.
Because the respondent no longer worked for the petitioning employer at the
time of his hearing, the Immigration Judge also found that he lacked
jurisdiction to determine the portability of the respondent’s new employmentCite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669
4 The respondents also raise the issue whether the Immigration Judge erred in denying
their request for a continuance. Specifically, they assert that the Immigration Judge’s denial
of a continuance prevented them from adequately preparing for the evidentiary hearing.
As we have stated before, a motion for a continuance is within the sound discretion of the
Immigration Judge, and his decision denying such a motion will not be reversed on appeal
unless the alien establishes, by a full and specific articulation of the particular facts involved
or evidence that he would have presented, that the denial caused him actual prejudice and
harm and materially affected the outcome of his case. See Matter of Sibrun, 18 I&N Dec.
354 (BIA 1983); 8 C.F.R. § 1003.29 (2010). In light of our decision sustaining the
respondents’ appeal and remanding for further proceedings, we decline to address this issue.
5 We note, however, that an Immigration Judge has no jurisdiction over the adjustment
application of an “arriving alien” unless the alien previously filed an adjustment application,
departed from and returned to the United States under advance parole, had the adjustment
application subsequently denied by the USCIS, and was placed in removal proceedings
either at the time he or she was paroled into the United States or after the application was
denied. 8 C.F.R. §§ 1245.2(a)(1)(ii)(A)–(D) (2010).
171
and therefore denied his application for adjustment of status pursuant to Matter
of Perez Vargas.
The respondents appealed the Immigration Judge’s decision, alleging that
he erred in determining that he lacked jurisdiction to decide the issue
of portability under section 204(j) of the Act, and arguing that the adjustment
of status application should have been adjudicated.4
The Board scheduled oral
argument and asked the parties to brief issues pertaining to the circuit court
law that rejected Matter of Perez Vargas. We canceled oral argument,
however, when it became apparent that both parties, supported by an amici
curiae filing, advocated that we overrule Matter of Perez Vargas.
II. ANALYSIS
In order to obtain lawful permanent resident status based on a visa petition
filed by an employer, an alien must complete a three-step process. Matovski
v. Gonzales, 492 F.3d at 726-27. The alien’s employer completes the first two
stages by filing an application for employment certification with the
Department of Labor and, upon gaining labor certification, filing an I-140 with
the DHS. Id. at 727. If the visa petition is approved and visa numbers are
immediately available, the alien’s adjustment application can be granted. The
alien may renew an adjustment of status application before an Immigration
Judge if it is denied by the USCIS.5
Id.; see also 8 C.F.R. § 245.2(a)(5)(ii)
(2010).
This entire process can take a significant amount of time. The Department
of Labor must determine that there are not sufficient workers available and that
the alien’s employment will not adversely affect the wages and workingCite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669
6 As the Fourth Circuit noted, “The cross-reference to subsection (a)(1)(D) appears
to be in error. Subsection (a)(1)(F) seems to be the intended subsection, given Congress’
redesignation of subsection (a)(1)(D) as subsection [(a)(1)(F)] by Section 1503(d)(1) of the
Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat.
1464, 1521.” Perez-Vargas v. Gonzales, 478 F.3d at 192 n.2.
172
conditions of United States workers. Matovski v. Gonzales, 492 F.3d at 733;
see also section 212(a)(5) of the Act. In addition, the adjudication by the DHS
of an I-140 or an application for adjustment, or both, can result in further
delay. As a result, Congress enacted section 204(j) of the Act as part of the
American Competitiveness in the Twenty-First Century Act of 2000, Pub. L.
No. 106-313, 114 Stat. 1251, 1254, “to provide ‘[j]ob flexibility for long
delayed applicants for adjustment of status to permanent residence.’”
Matovski v. Gonzales, 492 F.3d at 733 (quoting the heading of section 204(j)
of the Act). Section 204(j) provides:
A petition 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.6
However, as the Sixth Circuit pointed out, no regulations have yet been
promulgated to provide guidance on how to determine the portability of a job
change underlying an employment-based visa petition. Matovski v. Gonzales,
492 F.3d at 733.
To some extent, this lack of guidance persuaded us in Matter of Perez
Vargas, 23 I&N Dec. 829, to decide that Immigration Judges lack jurisdiction
to render portability determinations under section 204(j) of the Act. We relied
on the fact that a determination under section 204(j) requires some expertise
in assessing the similarity in certain types of employment. Id. at 831. “[E]ven
assuming the techniques used in the different jobs involved similar principles
and methods, it would be difficult for the Immigration Judge to assess whether
the new job description included the same level of responsibility and skill, and
whether the job would have an adverse impact on the United States labor
market,” which is a factor taken into consideration by the Department of Labor
when assessing whether to grant labor certification for the employment-based
visa petition. Id. at 831-32; see also id. at 833-34.
In addition, our rationale for previously finding that Immigration Judges
lack jurisdiction to decide whether a visa petition remains valid when an alien
changes jobs or employers rested on the fact that the DHS has jurisdiction
to decide the validity of visa petitions in the first place. Id. at 831. In sum,
we reasoned that since “[o]riginal jurisdiction over employment-basedCite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669
173
visa petitions lies with the DHS following issuance of a labor certification
by the Department of Labor . . . [i]t therefore follows that any redetermination
of the visa petition’s validity would also lie with these government entities,
and not with the Immigration Judge.” Id. at 832 (citation omitted).
On direct appeal, the Fourth Circuit disagreed with our decision that section
204(j) of the Act is a separate jurisdictional provision. Rather, the court found
that section 204(j) applies to aliens whose applications for adjustment of status
remain pending for more than 180 days and, therefore, that the relevant
adjudication involves adjustment of status. Perez-Vargas v. Gonzales, 478
F.3d at 194. Since the Attorney General has, aside from a few exceptions,
vested Immigration Judges with the exclusive jurisdiction to decide
applications for adjustment of status by aliens in removal proceedings, the
court concluded that jurisdiction to make a section 204(j) determination also
rests with Immigration Judges. Id. This determination is “simply an act
of factfinding incidental to the adjustment of status process.” Id.; see also
Sung v. Keisler, 505 F.3d at 376 (adopting the Fourth Circuit’s reasoning
in Perez-Vargas).
The amici brief argues that these circuit court cases found that the plain
language of the statute makes clear that Congress intended Immigration Judges
to have jurisdiction over section 204(j) determinations. Therefore, according
to amici, under step one of the Supreme Court’s two-step analysis for
interpreting statutes in Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984), we are required to find that Immigration
Judges have exclusive jurisdiction over portability issues. See also Nat’l
Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).
We do not agree that section 204(j) is so plainly written. There is no direct
reference to Immigration Judges in section 204(j), and they are certainly not
given exclusive jurisdiction over such determinations merely because they
have jurisdiction over applications for adjustment of status in removal
proceedings.
Nevertheless, we do not find it unreasonable, particularly with the way these
cases have developed, to now find that Immigration Judges do have
jurisdiction over section 204(j) determinations. One of our assumptions
in Matter of Perez Vargas was that the DHS would give an Immigration Judge
an indication as to whether an alien’s job was portable under section 204(j)
of the Act. However, the DHS has now informed us in its brief that this is not
the case. The agency does not see itself as having jurisdiction over section
204(j) determinations once an alien is in removal proceedings. We lack
authority to force the agency to make such a determination. That leaves only
the Immigration Judge to make this decision. We certainly agree with the
parties that the respondent should be able to obtain a decision on the
portability of the new employment under section 204(j). That was Congress’s
intent in enacting section 204(j), and not making such a determinationCite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669
174
frustrates the adjustment process for these aliens. Since the DHS is not going
to make the section 204(j) determination when it lacks jurisdiction over the
adjustment application, we agree that the Immigration Judge must do it. Any
other conclusion would result in unfairness.
The difficulties in procedurally navigating the transfer of the case between
an Immigration Judge and the DHS for portability determinations created
unfairness for aliens seeking resolution of their adjustment applications.
As noted by the Fourth Circuit, the result of our decision in Matter of Perez
Vargas placed aliens who are in removal proceedings at a disadvantage
compared to those whose adjustment applications were pending before the
DHS. Perez-Vargas v. Gonzales, 478 F.3d at 195. While the latter would
be permitted to request a section 204(j) determination directly from the DHS,
aliens whose applications were pending in removal proceedings could
not request a section 204(j) determination from the Immigration Judge
to determine the continuing validity of their visa petitions. This apparent
inability to obtain a portability determination frustrated congressional intent.
Likewise, the Sixth Circuit found that our decision in Matter of Perez Vargas
contradicted “the expressed intent of Congress to protect the job flexibility
of long-delayed applicants.” Matovski v. Gonzales, 492 F.3d at 737.
Upon reconsidering our prior decision, and particularly in light of the
DHS’s interpretation of its role in the section 204(j) process, we are persuaded
to agree with these recent circuit court decisions that Matter of Perez Vargas
is contrary to Congress’s intent to allow an alien to obtain a portability
determination and that there is no express jurisdictional bar to an Immigration
Judge’s authority to determine the portability of a job under section 204(j).
The purpose of the statute is to allow an alien to obtain a determination about
the continued viability of his or her visa petition after a change in employment
when the adjustment application has been pending for more than 180 days.
It is clear that Immigration Judges do not have authority to decide whether
a visa petition should be granted or revoked. See 8 C.F.R. § 204.1(e) (2010);
see also Matter of H-A-, 22 I&N Dec. 728, 736 (BIA 1999) (noting the
Board’s lack of jurisdiction to assess the evidence submitted in support
of a visa petition). However, despite these limitations, Immigration Judges do
have jurisdiction over related issues. For example, Immigration Judges may
examine the underlying basis for a visa petition when such a determination
bears on the alien’s admissibility. See, e.g., Matter of Iesce, 12 I&N Dec. 156
(BIA 1967) (rejecting the respondent’s argument that the fact that she was
issued an immigrant visa while abroad meant she was entitled to be admitted,
and finding her deportable because, as a married woman, she was not entitled
to the fifth-preference visa issued to her as an unmarried daughter); see also
Matter of Mozeb, 15 I&N Dec. 430 (BIA 1975) (finding that although aliens
from Yemen were granted visa petitions based on adoptions abroad by the
American consular officer, they were not entitled to such status basedCite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669
175
on Islamic law and were therefore not entitled to be admitted); Matter of R-D-,
6 I&N Dec. 581 (BIA 1955) (finding that a Western Hemisphere visa
issued under prior law remained valid where, absent evidence of fraud
or misrepresentation, an employment offer was no longer available, but the
alien had other job opportunities). In fact, section 204(e) of the Act makes
clear that even when a visa petition is approved, the alien is not immunized
from having the basis for the visa petition examined by an Immigration Judge,
if warranted, once the alien is placed in removal proceedings, as part of the
Immigration Judge’s determination whether the alien is entitled to be admitted
to the United States. See Matter of Bark, 14 I&N Dec. 237, 240 (BIA 1972)
(noting that the “statute specifically provides that the visa petition procedure
shall not be construed as entitling an immigrant to enter the United States
if at the time of arrival he is found not to be entitled to the classification
accorded him by the visa petition, section 204(e)”), rev’d on other grounds,
Bark v. INS, 511 F.2d 1200 (9th Cir. 1975).
In the labor certification context, Immigration Judges may assess
whether the representations forming the basis for a labor certification approval
were accurate, despite not being allowed to actually approve labor
certifications, even as to jobs listed under a precertified list of occupations.
Compare Matter of Belmares-Carrillo, 13 I&N Dec. 195 (BIA 1969)
(holding that an Immigration Judge had authority to determine whether
an alien was properly qualified for labor certification necessary for
an employment-related visa), with Matter of Grove, 13 I&N Dec. 572 (BIA
1970) (finding that an Immigration Judge had no authority to consider whether
a nonpreference applicant for adjustment of status was qualified for
precertification under Schedule C of 29 C.F.R. § 60.3, which authorized only
the District Director to make such a determination). See generally Matter
of Ortega, 13 I&N Dec. 606 (BIA 1970) (affirming the Immigration Judge’s
determination that the alien’s actual job responsibilities were not the same
as those for the profession identified in the labor certification); Matter
of Welcome, 13 I&N Dec. 352 (BIA 1969) (finding that the Board had
authority to determine the validity of a labor certification when the alien knew
the certified job was no longer available prior to departure from abroad);
Matter of Stevens, 12 I&N Dec. 694 (BIA 1968) (finding, under prior law, that
where an alien was no longer employed by the employer who obtained the
labor certification submitted in conjunction with her application, the
certification was no longer valid for adjustment of status purposes and she was
statutorily ineligible for adjustment of status in the absence of a new
certification).
We recognize that a section 204(j) determination might be difficult for
Immigration Judges. Our prior decision in Matter of Perez Vargas discussed
the fact that judges may lack expertise in making such determinations.
Nevertheless, we anticipate that there will be cases where the new job is veryCite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669
176
similar to the original job, which will result in a relatively easy determination
for the Immigration Judge, and, barring any other eligibility issues, the alien
will be granted adjustment of status. Likewise, where the new job is very
different from the original one, a decision to find the job not portable may well
be fairly easy.
In cases where portability is not readily apparent, the Immigration Judge
may need to grant continuances for the parties to obtain and submit
evidence in support of, or in opposition to, a finding of portability. See Matter
of Rajah, 25 I&N Dec. 127 (BIA 2009) (stating that an alien’s unopposed
motion to continue ongoing removal proceedings to await the adjudication
of a pending employment-based visa petition should generally be granted
if approval of the visa petition would render him prima facie eligible for
adjustment of status); see also Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009)
(identifying factors to be considered in determining whether to grant
a continuance in similar cases involving pending family-based visa petitions).
While we recognize that our decision may result in Immigration Judges
often rendering decisions of first impression, we are confident that section
204(j) determinations are not outside the scope of their duties in immigration
matters. Immigration Judges, like other trial judges generally, are often
required to determine factual disputes regarding matters on which they possess
little or no knowledge or substantive expertise, and, in making such
determinations, they typically rely on evidence, including expert testimony,
presented by the parties.
As a final matter, we believe that allowing Immigration Judges to make
section 204(j) determinations is more in line with the legislative purpose of the
American Competitiveness in the Twenty-First Century Act, which appears
to be intended to free aliens from the need to file new employment visa
petitions, or to obtain formal reapproval of prior petitions, when they change
jobs after a significant delay in the adjudication process. Our decision
in Matter of Perez Vargas effectively required an alien to obtain reapproval
from the DHS before an Immigration Judge could adjudicate the adjustment
of status application. As such, it went against congressional intent to allow for
job flexibility in long-delayed applications for adjustment of status. See
Perez-Vargas v. Gonzales, 478 F.3d at 195; see also Matovski v. Gonzales,
492 F.3d at 737. Accordingly, we overrule our decision in Matter of Perez
Vargas.
ORDER: The respondents’ appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further adjudication of the respondents’ request for adjustment of status.Cite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669
1 The section 204(i) portability provision for professional athletes is similar to the section
204(j) provision, but it is not linked to the adjustment application. Similarly, for purposes
of section 204(i), the question is whether the I-140 remains valid despite a change
in employment.
177
CONCURRING OPINION: Board Member Anne J. Greer, in which Roger A.
Pauley, Board Member, joined
Both the respondent and the Department of Homeland Security (“DHS”)
now request that we vacate Matter of Perez Vargas, 23 I&N Dec. 829 (BIA
2005). The Government’s change of position in this regard, combined with the
decisions in three circuit courts of appeal to overrule Perez Vargas, provides
a meaningful impetus for us to do so. I therefore reluctantly join with the
majority in concluding that the time has come for Immigration Judges and the
Board to take jurisdiction in all circuits over portability determinations under
section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j)
(2006). I recognize that nothing explicitly prohibits our jurisdiction and that
Immigration Judges, as finders of fact, can make these determinations. Yet
I write separately to explain why I believe this to be an undesirable shift in the
law.
Section 204(j) was enacted in response to delays by the United States
Citizenship and Immigration Services (“USCIS”) in adjudicating adjustment
of status applications, which impeded aliens from changing employment.
Section 204(j) was designed to give job flexibility to these adjustment
applicants. Without this provision, an alien’s change in job or employer
while his adjustment application was pending would invalidate the
employment-based visa petition and labor certification, thereby rending him
ineligible to adjust status. During the years the adjustment application was
pending, aliens were bound to the certified job and employer. Section 204(j)
frees aliens to make such changes without invalidating the underlying Form
I-140 (Immigrant Petition for Alien Worker) and labor certification when the
initial adjustment application is not adjudicated by the USCIS in a timely
manner. Matter of Perez Vargas, 23 I&N Dec. at 832.
While section 204(j) is temporally linked to the adjustment application, the
evaluation of the new position’s characteristics approximates the labor
certification and visa petition examination process.1
Section 204(j) is not
implicated unless the USCIS does not complete the adjustment of status
adjudication within 180 days of filing. If the alien changes jobs after that
point, he may request a portability determination from the USCIS to ascertain
whether the new position is in the same or similar occupational classification
as the job for which the certification was issued. Cite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669
2 The potential for divergent sources of precedential authority emerging from the AAO and
the Board raises the prospect of additional confusion, although Board authority will
be binding. 8 C.F.R. § 1003.1(g) (2010).
178
Since 2001, the DHS (formerly the Immigration and Naturalization Service)
has represented that regulations were being formulated to address section
204(j) determinations. See, e.g., Matter of Perez Vargas, 23 I&N Dec. at 833
n.5. In the absence of regulations, the DHS has developed procedures and
issued extensive guidance for handling section 204(j) determinations. When
making a portability determination, USCIS adjudicators are directed to use the
Department of Labor’s published occupational classification system
to compare the occupational code assigned to the certified job with the code
that is appropriate to the new job. They also compare the jobs in terms of the
listed job duties and the wage offered. This sort of analysis can be likened
to successor-in-interest determinations in adjudicating I-140s. See id. at 832.
Further, the Administrative Appeals Office (“AAO”) issues administrative
decisions to provide national interpretation for recurring 204(j) issues
of significance. See, e.g., Matter of Al Wazzan, A95 253 422 (AAO Jan. 12,
2005), available at 2005 WL 1950775 (holding that the I-140 must
be approved for an alien to port).2
I find support in the administrative appellate AAO decisions and the
reviewing Federal courts for my position that portability is more rationally
related to the underlying visa petition than to the adjustment application.
Recently, in Herrera v. U.S. Citizenship and Immigration Services, 571 F.3d
881 (9th Cir. 2009), the United States Court of Appeals for the Ninth Circuit
found that nothing in section 204(j) of the Act precluded the USCIS from
revoking Herrera’s approved I-140 after she had used it to port to a new
employer. The court agreed with the AAO’s analysis of section 204(j) that for
an I-140 to remain “valid” with respect to the new job, it “‘must have been
filed for an alien that is “entitled” to the requested classification.’” Id. at 887
(quoting the AAO). Consequently, Herrera’s adjustment application was
properly denied because an alien cannot port on the basis of a revoked I-140.
Breaking the link between section 204(j) determinations and the I-140
adjudication will only complicate the adjudication of an adjustment application
in removal proceedings. For example, if a respondent in removal proceedings
seeks to port before the USCIS adjudicates his I-140, an Immigration Judge
is faced with the prospect of continuing the case to allow the USCIS
to adjudicate the I-140. Presumably, the case would then need to be returned
for the Immigration Judge to make a portability determination under section
204(j) and adjudicate the adjustment application. It would be far more
efficient for the employment criteria to be evaluated as a whole within
a structure designed for that purpose at the USCIS.Cite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669
179
Significantly, section 204(j) was not incorporated into section 245 of the
Act, 8 U.S.C. § 1255 (2006), which governs the adjustment of status process.
It is undisputed that the DHS’s USCIS has exclusive jurisdiction to adjudicate
visa petitions. After an investigation, the USCIS is authorized to approve
a visa petition if the facts stated in the petition are true and the alien is eligible
for the classification sought. See section 204(b) of the Act. Section 204 of the
Act specifies persons who may file visa petitions, describes circumstances that
preclude petition approval, and authorizes certain petitions to remain valid
despite a change in employment. Because only the USCIS acts on visa
petitions, only it can make section 204 determinations—except now for section
204(j), and then only if removal proceedings have begun.
Immigration Judges do not validate or invalidate visa petitions and labor
certifications. Rather, they may examine the intent of the respondent and the
employer to consummate the employment relationship. The issue presented
in such cases is whether the alien possessed the requisite intent to accept
employment in the certified job. See, e.g., Matter of Ortega, 13 I&N Dec. 606
(BIA 1970) (finding that the applicant was excludable at entry because he had
no intention of accepting the job covered by the labor certification); Matter
of Welcome, 13 I&N Dec. 352 (BIA 1969) (finding that the respondent was
inadmissible at entry because she knew at the time of her admission that the
job covered by the labor certification was no longer available to her); Matter
of Stevens, 12 I&N Dec. 694 (BIA 1968)(denying the respondent’s adjustment
application because she was no longer working at the job covered by the labor
certification).
If the DHS would undertake the portability determination, there are several
procedural mechanisms available to an alien in removal proceedings whose
eligibility to adjust status depends upon a favorable portability determination.
Proceedings could be administratively closed, terminated without prejudice,
or continued while the USCIS determines the continuing validity of the
respondent’s I-140. If the parties agree, the Immigration Judge may grant
administrative closure. See generally Matter of Gutierrez, 21 I&N Dec. 479
(BIA 1996) (stating that administrative closure is used to temporarily remove
the case from the court’s docket and that a case may not be administratively
closed if opposed by either party). Administrative closure avoids the repeated
rescheduling of a case that is clearly not ready to be concluded. Either party
can move to have the case recalendered once the portability determination
is made. Alternatively, the parties could agree that the case be terminated,
thereby allowing the DHS to make the portability determination, as well as the
decision on adjustment of status.
The Immigration Judge could also continue the case to await the
outcome of the portability determination. Immigration Judges routinelyCite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669
180
exercise their discretion over continuance motions for pending visa petitions
in both the family and employment contexts. See Matter of Hashmi, 24 I&N
Dec. 785 (BIA 2009) (discussing the factors to be used when considering
a motion to continue proceedings to await the adjudication of a pending
family-based visa petition); see also Matter of Rajah, 25 I&N Dec. 127
(BIA 2009) (discussing factors to be used when considering a motion
to continue proceedings to await the adjudication of a labor certification
or employment-based immigrant visa petition).
I would prefer to establish a standard to allow the Immigration Judge
to continue the case when a successful portability determination would result
in a prima facie approvable adjustment of status application. The statutory and
regulatory landscape in this area is confusing and complex, which creates
uncertainty in its application. Aliens in removal proceedings have not been
successful in obtaining portability determinations from the DHS, which now
leads to the result we reach here. In Matter of Yauri, 25 I&N Dec. 103 (BIA
2009), we explained how similar confusion led to DHS inaction over a specific
category of adjustment applicants, even in the presence of clearly assigned
jurisdiction.
In my view, USCIS adjudication of portability determinations under section
204(j) would be far more efficient than bifurcating jurisdiction depending
on whether removal proceedings are underway. Nonetheless, this is the result
we are compelled to adopt.