Cite as 25 I&N Dec. 359 (AAO 2010) Interim Decision #3699
1 This matter was initially decided on January 12, 2005, and designated as an “adopted
decision” of U.S. Citizenship and Immigration Services, guiding USCIS officers in their
administration of the immigration laws. It was not designated as precedent under 8 C.F.R.
§ 1003.1(i) (2010) until October 20, 2010. On our own motion, we reopen and amend the
decision for the limited purpose of making editorial revisions consistent with designation
of the decision as precedent.
2 After the director denied the underlying immigrant visa petition, the petitioner filed
a complaint for declaratory and injunctive relief in the United States District Court, Central
District of California. Al Wazzan (USA), Inc. v. Tom Ridge, CV04-6575-NM (RZX) (filed
Aug. 9, 2004). On November 15, 2006, the district court entered judgment in favor of the
Government.
359
Matter of AL WAZZAN
Decided October 20, 20101
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Office
(1) Although section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j)
(2000), provides that an employment-based immigrant visa petition shall remain valid
with respect to a new job if the beneficiary’s application for adjustment of status has
been filed and remained unadjudicated for 180 days, the petition must have been “valid”
to begin with if it is to “remain valid with respect to a new job.”
(2) To be considered “valid” in harmony with related provisions and with the statute
as a whole, the petition must have been filed for an alien who is “entitled” to the
requested classification and that petition must have been “approved” by a U.S.
Citizenship and Immigration Services (“USCIS”) officer pursuant to his or her authority
under the Act.
(3) Congress specifically granted USCIS the sole authority to make eligibility
determinations for immigrant visa petitions under section 204(b) of the Act.
(4) An unadjudicated immigrant visa petition is not made “valid” merely through the act
of filing the petition with USCIS or through the passage of 180 days.
ON BEHALF OF APPLICANT: Angelo Paparelli, Esquire, Irvine, California
BEFORE: Perry Rhew, Chief, Administrative Appeals Office
The Director, California Service Center, denied the Application to Register
Permanent Residence or Adjust Status (Form I-485) on October 6, 2004.2
In a separate action on November 8, 2004, the director certified the decisionCite as 25 I&N Dec. 359 (AAO 2010) Interim Decision #3699
360
to the Administrative Appeals Office (“AAO”) for review. The director’s
decision will be affirmed.
The applicant is a native and citizen of Kuwait who seeks to adjust his
status to permanent resident, despite never having shown eligibility for the
immigrant visa classification on which his adjustment application is based.
On two occasions, the director denied the Form I-140 immigrant visa petitions
that his employer, Al Wazzan (USA), Inc. dba “Prime Casting,” filed on his
behalf. In accordance with section 245(a) of the Immigration and Nationality
Act, 8 U.S.C. § 1255(a) (2000), the applicant is seeking to adjust his status
as a multinational executive or manager pursuant to section 203(b)(1)(C) of the
Act, 8 U.S.C. § 1153(b)(1)(C) (2000). Although the director denied the visa
petition that was filed by the applicant’s actual employer, the applicant states
that he has now been offered employment by a second firm and claims that
he should be allowed to adjust status based on this job offer.
On notice of certification, the applicant submits a brief in support of the
application for adjustment of status. Citing section 204(j) of the Act, 8 U.S.C.
§ 1154(j) (2000), titled “Job Flexibility For Long Delayed Applicants For
Adjustment of Status to Permanent Residence,” the applicant asserts that U.S.
Citizenship and Immigration Services (“USCIS”) may not deny the adjustment
application because the application had been pending for more than 180 days
at the time it was adjudicated.
I. FACTUAL AND PROCEDURAL HISTORY
This matter has a complex procedural history. The applicant’s employer
filed an initial Form I-140 immigrant visa petition (WAC 98 245 51887)
in 1998, which the director denied on February 2, 2000. The AAO dismissed
a subsequent appeal on January 8, 2001, affirming the director’s decision
to deny, and rejected a late motion to reopen the matter on July 22, 2003.
No Form I-485 was ever filed in connection with this I-140 petition.
The applicant’s employer filed a second Form I-140 immigrant visa
petition (WAC 02 266 54969) on August 26, 2002. Additionally, the applicant
immediately filed this Form I-485 application for adjustment of status
on September 18, 2002, pursuant to the “concurrent filing” process that was
implemented by USCIS on July 31, 2002. See 67 Fed. Reg. 49,561 (July 31,
2002), codified at 8 C.F.R. § 245.2(a)(2)(i)(B). After a number of intervening
actions, the director ultimately denied the Form I-140 immigrant visa petition
on August 3, 2003. Consistent with USCIS policy, the director also denied the
Form I-485 application for adjustment of status on September 29, 2003,
because an immigrant visa was not immediately available to the applicant.
See Memorandum from William Yates, Deputy Exec. Assoc. Comm’r, USCIS,
Procedures for concurrently filed family-based or employment-based Form
I-485 when the underlying visa petition is denied (Feb. 28, 2003), discussedCite as 25 I&N Dec. 359 (AAO 2010) Interim Decision #3699
3 There is some question as to the actual date of the director’s denial of the adjustment
of status application; regardless of how it is calculated, the application was pending more
than 180 days. The lengthy delay in adjudicating the application for adjustment of status
was caused by a USCIS error, which in turn was the result of the concurrent filing process
and the applicant’s multiple visa petitions. The Form I-485 application for adjustment
of status was originally denied on October 30, 2002, or 42 days after filing, after the director
erroneously matched the Form I-485 with the first denied Form I-140, instead of the second
pending Form I-140. After the applicant noted this error in 2003, the director reopened the
matter and denied the application for a second time on September 29, 2003. Since the first
denial was predicated on USCIS error, the second decision will be considered the effective
denial of the application for adjustment of status.
4
In 2006, Congress amended section 245(a) of the Act by striking the phrase “under
subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) of section 1154(a)(1) of this title or” and
inserting “as a VAWA self-petitioner.” Violence Against Women and Department of Justice
Reauthorization Act—Technical Corrections, Pub. L. No. 109-271, § 6(f)(1), 120 Stat. 750,
763 (2006).
361
and reproduced in Tammy Fox-Isicoff and H. Ronald Klasko, The Child
Status Protection Act: Is your Child Protected?, 80 Interpreter Releases,
No. 28, July 21, 2003, at 973 (“Service adjudicators should also deny the
concurrently filed Form I-485 when the underlying visa petition is denied
because the applicant has lost the claim to adjustment of status.”).
Accordingly, at the time that the director denied the Form I-485 application
for adjustment of status, the application had been pending for 376 days.3
II. ISSUE PRESENTED ON CERTIFICATION
This case presents the AAO with its first opportunity to construe this
statutory provision and determine its effect on an application for adjustment
of status if a visa petition is denied after the application is pending for
180 days. In general, an alien may acquire permanent resident status in the
United States through two legal mechanisms: the alien may pick
up an approved visa packet at an overseas consulate and be “admitted” to the
United States for permanent residence; or, if the alien is already in the
United States in a lawful nonimmigrant or parolee status, the alien may “adjust
status” to that of an alien admitted for permanent residence. Compare section
211 of the Act, 8 U.S.C. § 1181 (2000), with section 245 of the Act.
Governing adjustment of status, section 245(a) of the Act4
requires the
adjustment applicant to have an “approved” petition:
The status of an alien who was inspected and admitted or paroled into
the United States or the status of any other alien having an approved
petition for classification under subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii)Cite as 25 I&N Dec. 359 (AAO 2010) Interim Decision #3699
362
of section 204(a)(1) or [sic] may be adjusted by the Attorney General [now Secretary
of Homeland Security], in his discretion and under such regulations as he may
prescribe, to that of an alien lawfully admitted for permanent residence if:
(1) the alien makes an application for such adjustment,
(2) the alien is eligible to receive an immigrant visa and is admissible to the
United States for permanent residence, and
(3) an immigrant visa is immediately available to him at the time his
application is filed.
(Emphasis added.)
In 2000, Congress passed the American Competitiveness in the
Twenty-First Century Act of 2000, Pub. L. No. 106-313, 114 Stat. 1251
(“AC21”). Section 106(c) of AC21, 114 Stat. at 1254, amended section 204
of the Act by adding subsection(j), titled “Job Flexibility for Long Delayed
Applicants for Adjustment of Status to Permanent Residence”:
A petition under subsection (a)(1)(D) [since redesignated section 204(a)(1)(F)]
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.
Section 212(a)(5)(A)(iv) of the Act, 8 U.S.C. § 1182(a)(5)(A)(iv) (2000),
states further:
A certification made under clause (i) with respect to an individual whose petition
is covered by section 204(j) shall remain valid with respect to a new job accepted
by the individual after 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
certification was issued.
At the time AC21 went into effect, legacy Immigration and Naturalization
Service (“INS”) regulations provided that an alien worker could not apply for
permanent resident status by filing a Form I-485, application to adjust status,
until he or she obtained the approval of the underlying Form I-140 immigrant
visa petition. See 8 C.F.R. § 245.2(a)(2)(i) (2000). Therefore, the process
under section 106(c) of AC21 at the time of enactment was as follows: first,
an alien obtained an approved employment-based immigrant visa petition;
second, the alien filed an application to adjust status; third, if the adjustment
application was not processed within 180 days, the underlying immigrant visa
petition remained valid even if the alien changed employers or positions,
provided the new job was in the same or similar occupational classification.
On certification, the applicant claims that the director improperly denied
the underlying Form I-140 immigrant visa petition and, regardless of thatCite as 25 I&N Dec. 359 (AAO 2010) Interim Decision #3699
5 The denied Form I-140 (WAC 02 266 54969) was also certified to the AAO for review.
In a separate decision that will be incorporated into the record of proceeding, the AAO
upheld the director’s decision to deny the immigrant visa petition. The applicant fails
to mention that the director denied the previous Form I-140 (WAC 98 245 51887) and that
the AAO also dismissed the appeal in that matter.
6 The applicant’s argument implies that the present application is not frivolous. The
applicant does claim that five prior approvals of the beneficiary’s nonimmigrant status
confirmed the applicant’s eligibility. The applicant fails to mention that the INS denied the
petitioner’s third request for an extension and revoked the approval of the last nonimmigrant
petition filed by the applicant’s employer. Most significantly, the applicant declines to note
that prior to filing the current Form I-140 and Form I-485, the applicant’s employer filed an
initial Form I-140 immigrant visa petition in 1998, which was denied by the director. The
AAO affirmed the director’s denial on appeal. The issue in the present matter, however,
is not whether the beneficiary’s application for adjustment of status is frivolous, but whether
the visa petition remains “valid” under section 106(c) of AC21.
363
denial, further argues that section 106(c) of AC21 bars the director from
denying the application for adjustment of status because it was pending for
more than 180 days.5
The applicant asserts that Congress enacted section
106(c) in an effort to reduce the backlogs of adjustment of status applications
and ameliorate the negative consequences that these backlogs have
on applicants. Citing Tcherepnin v. Knight, 389 U.S. 332 (1967), the applicant
states that “the familiar canons of statutory construction require that remedial
legislation should be construed liberally to effectuate Congress’ intent.” The
applicant maintains that the only reasonable interpretation of section 106(c)
is that “Congress in effect gave the USCIS a six-month deadline within which
to adjudicate every non-frivolous employment-based immigrant visa petition
and associated adjustment application.” Accordingly, the applicant concludes
that after 6 months have elapsed from the date of filing for adjustment
of status, USCIS no longer has the authority to deny a “non-frivolous”
Form I-485 application and the alien beneficiary has the statutory right
to change jobs or employers.6
The applicant has pointed to no legislative
history that would support his assertion, in essence, that USCIS should
overlook the statutory requirement of an “approved petition” for adjustment
of status, in favor of granting permanent residence to those aliens with denied
petitions, or even to aliens with unadjudicated I-140s, if the 180-day time
period passes before the adjustment application is adjudicated.
The available legislative history does not shed light on Congress’ intent
in specifically enacting section 106(c) of AC21. While the legislative history
for AC21 discusses congressional concerns regarding the nation’s economic
competitiveness, the shortage of skilled technology workers, U.S. job training,
and the cap on the number of nonimmigrant H-1B workers, the legislative
history does not specifically mention section 106(c) or any concerns regarding
backlogs in adjustment of status applications. The legislative history brieflyCite as 25 I&N Dec. 359 (AAO 2010) Interim Decision #3699
7
USCIS has not published any regulations governing the application of section 106(c)
of AC21. The agency has offered guidance on this provision in the form of policy
memoranda and has amended the Adjudicator’s Field Manual (“AFM”) to account for the
law. At the time of adjudication, neither the memoranda nor the AFM had defined the
term “valid” or discussed the effect of AC21 on a petition that is denied or remains
unadjudicated after 180 days. See Memorandum from William R. Yates, Acting Assoc. Dir.
for Operations, USCIS, 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
(Aug. 4, 2003); Memorandum from Michael A. Pearson, Executive Assoc. Comm’r, Office
of Field Operations, INS (now CIS), 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 (June 19, 2001); see also AFM § 20.2. USCIS has since
issued supplemental guidance on section 106(c) of AC21. See Memorandum from
(continued…)
364
mentions “inordinate delays in labor certification and INS visa processing”
in reference to provisions relating to the extension of an H-1B nonimmigrant
alien’s period of stay. See S. Rep. No. 106-260, at 9, 20 (2000), available
at 2000 WL 622763. In the 2001 Report on the Activities of the Committee
on the Judiciary, the House Judiciary Committee summarized the effects
of AC21 on immigrant visa petitions:
[I]f an employer’s immigrant visa petition for an alien worker has been filed and
remains unadjudicated for at least 180 days, the petition shall remain valid with respect
to a new job if the alien 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.
H.R. Rep. No. 106-1048, at 194 (2000), available at 2001 WL 67919
(emphasis added). Notably, this report further confuses the question
of congressional intent since the report clearly refers to “immigrant visa
petitions” and not the “application for adjustment of status” that appears in the
final statute. Even if more specific references were available, the legislative
history behind AC21 would not provide guidance in the current matter since,
as previously noted, an approved employment-based immigrant visa petition
was required to file for adjustment of status at the time Congress enacted
AC21.
III. INTERPRETATION OF “VALID”
Upon review, the applicant’s assertions are not persuasive. The
operative language in section 106(c) is the following sentence: “A petition . . .
shall remain valid with respect to a new job if the individual changes
jobs or employers . . . .” The term “valid” is not defined by the statute, nor
does the Congressional Record provide any guidance as to its meaning.7Cite as 25 I&N Dec. 359 (AAO 2010) Interim Decision #3699
(…continued)
Donald Neufeld, Acting Assoc. Dir. of Domestic Operations, USCIS, Supplemental
Guidance Relating to Processing Forms I-140 Employment-Based Immigrant Petitions and
I-129 H-1B Petitions, and Form I-485 Adjustment Applications Affected by the American
Competitiveness in the Twenty-First Century Act (Public Law 106-313), as amended, and
the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Title IV
of Div. C of Public Law 105-277 (May 30, 2008).
365
See S. Rep. No. 106-260; see also H.R. Rep. No. 106-1048. Critical to section
106(c) of AC21, the petition must be “valid” to begin with if it is to “remain
valid with respect to a new job.” Section 204(j) of the Act (emphasis added).
Although the applicant relies on congressional intent and the “familiar
canons of statutory construction” to assert that the AAO should construe
section 106(c) liberally, the applicant does not discuss the actual language
of the statute. Statutory interpretation begins with the language of the
statute itself. Pennsylvania Department of Public Welfare v. Davenport,
495 U.S. 552 (1990). We are expected to give the words used in the statute
their ordinary meaning. Chevron, U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837 (1984). Furthermore, we are to construe the language
in question in harmony with the thrust of related provisions and with the
statute as a whole. K Mart Corp. v. Cartier Inc., 486 U.S. 281, 291 (1988)
(holding that construction of language which takes into account the design
of the statute as a whole is preferred); see also COIT Independence Joint
Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989); Matter
of W-F-, 21 I&N Dec. 503 (BIA 1996).
The problematic issues presented by this case are primarily the
result of immigration procedures that have arisen since the enactment
of section 106(c) of AC21. As previously noted, USCIS implemented the
“concurrent filing” process on July 31, 2002, whereby an employer may
file an employment-based immigrant visa petition and an application for
adjustment of status for the alien beneficiary at the same time. See 67 Fed.
Reg. at 49,561. USCIS implemented the concurrent filing process
as a convenience for aliens and their U.S. employers; USCIS in no way
suggested that an unadjudicated I-140 could be the basis for I-485 approval
under the portability provisions of section 106(c). Prior to this date, only
immediate relatives and family-based preference cases could concurrently file
a visa petition and an adjustment application. Accordingly, at the time that
Congress enacted AC21, no alien could assert that a denied or unadjudicated
immigrant visa petition “shall remain valid” through the passage of 180 days,
since the application for adjustment could not be filed until after the petition
was approved by USCIS. It is presumed that Congress is aware of INS
regulations at the time it passes a law. See Goodyear Atomic Corp. v. Miller,
486 U.S. 174, 184-85 (1988). Cite as 25 I&N Dec. 359 (AAO 2010) Interim Decision #3699
8
It is also noted that the Act contains at least one provision that does apply
to pending petitions; in that instance, Congress specifically used the word “pending.” See
section 101(a)(15)(V) of the Act, 8 U.S.C. § 1101(a)(15)(V) (2000) (establishing
a nonimmigrant visa for aliens with family-based petitions that have been pending 3 years
or more).
366
Contrary to the ordinary meaning of the word, the applicant’s
assertion would have the AAO construe the term “valid” to include denied
or unadjudicated petitions. See Webster’s New College Dictionary 1218
(2001) (defining “valid” as “well-grounded,” “producing the desired results,”
or “legally sound and effective”). Since an approved petition was required
to file an application for adjustment of status, it is extremely doubtful that
Congress intended the term “valid” to include petitions that are denied
or remain pending after the close of the 180-day period.8
With regard to the overall design of the nation’s immigration laws, section
204 of the Act provides the basic statutory framework for the granting
of immigrant status. Section 204(a)(1)(F) of the Act provides that “[a]ny
employer desiring and intending to employ within the United States an alien
entitled to classification under section . . . 203 . . . may file a petition with the
Attorney General [now Secretary of Homeland Security] for such
classification.” (Emphasis added.)
Section 204(b) of the Act governs USCIS’ authority to approve
an immigrant visa petition and grant immigrant status:
After an investigation of the facts in each case, and after consultation with the
Secretary of Labor with respect to petitions to accord a status under section 203(b)(2)
or 203(b)(3), the Attorney General [now Secretary of Homeland Security] shall,
if he determines that the facts stated in the petition are true and that the alien in behalf
of whom the petition is made is . . . eligible for preference under subsection (a) or (b)
of section 203, approve the petition and forward one copy thereof to the Department
of State. The Secretary of State shall then authorize the consular officer concerned
to grant the preference status.
Accordingly, pursuant to the statutory framework for the granting
of immigrant status, any United States employer desiring and intending
to employ an alien “entitled” to immigrant classification under the Act “may
file” a petition for classification. Section 204(a)(1)(F) of the Act. However,
section 204(b) of the Act mandates that USCIS approve that petition only after
investigating the facts in each case, determining that the facts stated in the
petition are true and that the alien is eligible for the requested classification,
and consulting with the Secretary of Labor when required. Section 204(b)
of the Act. Congress specifically granted USCIS the sole authority to approve
an immigrant visa petition; an alien may not adjust status or be grantedCite as 25 I&N Dec. 359 (AAO 2010) Interim Decision #3699
367
immigrant status by the Department of State until USCIS “approves” the
petition.
Therefore, to be considered “valid” in harmony with the thrust of the
related provisions and with the statute as a whole, the petition must have been
filed for an alien who is “entitled” to the requested classification and that
petition must have been “approved” by a USCIS officer pursuant to his or her
authority under the Act. See generally section 204 of the Act. Contrary to the
applicant’s assertions, a petition is not made “valid” merely through the act
of filing the petition with USCIS or through the passage of 180 days.
To interpret this provision in any other manner would subvert the statutory
scheme of the U.S. immigration laws.
Considering the statute as a whole, it would severely undermine the
immigration laws of the United States to find that a petition is “valid” when
that petition was never approved or, even if it was approved, if it was
filed on behalf of an alien who was never “entitled” to the requested visa
classification. It would be irrational to believe that Congress intended
to throw out the entire statutorily mandated scheme regulating immigrant visas
whenever that scheme requires more than 180 days to effectuate. It would also
be absurd to suppose that Congress enacted a statute that would encourage
large numbers of ineligible aliens to file immigrant visa petitions, if the
legislation was actually meant to be an impetus for USCIS to reduce its
backlogs. Although the applicant’s assertions rely heavily on the assumed
intent of Congress to ameliorate the effects of USCIS backlogs, the applicant’s
construction of section 106(c) would create a situation where ineligible
aliens would gain a “valid” visa simply by filing frivolous visa petitions and
adjustment applications, thereby increasing USCIS backlogs, in the hopes that
the application might remain unadjudicated for 180 days.
In the present matter, the petition was filed on behalf of an alien who was
not “entitled” to the classification and the petition was ultimately denied.
Section 106(c) of AC21 does not repeal or modify section 204(b) or section
245 of the Act, which require USCIS to approve a petition prior to granting
immigrant status or adjustment of status. Accordingly, this petition cannot
be deemed to have been “valid” for purposes of section 106(c) of AC21.
IV. CONCLUSION
Because the applicant’s assertions are not persuasive and the denial of the
underlying petition still stands, there is no provision to allow the approval
of the adjustment application. The burden of proving eligibility for the benefit
sought remains entirely with the applicant. Section 291 of the Act, 8 U.S.C.
§ 1361 (2000). Here, that burden has not been met. The application must
be denied. Cite as 25 I&N Dec. 359 (AAO 2010) Interim Decision #3699
368
This decision does not bar the applicant’s new prospective employer
from filing a new I-140 immigrant visa petition, based on an appropriate visa
classification, with a new I-485 application for adjustment of status. It is noted
that the applicant has a priority date of April 27, 2001, based on a labor
certification that was filed on his behalf by a third potential employer, which
makes him eligible for benefits under section 245(i) of the Act.
ORDER: The director’s decision is affirmed. The application is denied.