Guest Column by Julie Soininen
Copyrighted by, and reproduced with permission of ILW.COM.

I am writing to seek your assistance on behalf of several dozen clients of my firm. As you know, a recent Board of Immigration Appeals decision, In re Perez Vargas (23 I&N Dec 829 (BIA 2005), held that 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. The Board stated that “ it is incumbent upon the DHS to determine whether the respondent’s visa petition remains valid pursuant to section 204(j) of the Act” but offered no practical guidance as to how to actually obtain this determination.

Under INA §204(j) and the American Competitiveness in the 21st Century Act (“AC21”), an applicant for employment based adjustment of status based on an immigrant petition 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. I trust that you are aware that USCIS officers routinely make determinations on this issue in adjudicating clients’ 485 applications throughout the country. Quite frankly, although our firm advises clients conservatively on this issue, in practice such adjudications have been extremely straightforward. (more…)