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.

My request is that you consider, as soon as possible, implementing a procedure whereby clients in proceedings, seeking employment based adjustments before IJ’s, can continue to utilize section 204(j) of the INA in light of the BIA’s decision in Perez Vargas. As you know, over five years have passed and there are still no regulations implementing “AC21”. Memos issued by USCIS have been most helpful, but to date have not specifically addressed the Court adjudications.

I have several suggestions, but believe that most practitioners would be willing to accept ANY procedure which will allow these applications to be considered. My suggestions include:

1) Providing a procedure for requesting an advisory opinion from the Service Center which adjudicated the original I-140.
2) Providing a procedure for the filing of a “new” I-140 for the new employment.
3) Providing a procedure for the administrative closure of the pending court case while the case is transferred to the local district office for adjudication of the 204(j) issue (similar to the current procedure in place for I-130’s filed on behalf of Respondents in proceedings.)

I can tell you that the vast majority of our clients seek to utilize section 204(j) to adjust for compelling reasons; I would venture to say that they these reasons mirror the policy concerns that led Congress to pass this law in the first place. For example, one of our clients was forced to change employers because she was suffering physical and sexual abuse at the hands of her employer. Another clients’ case “disappeared” on remand to the Board for over 3 years and in another case, the Employer insisted on paying only the prevailing wage of $4.21 despite the fact that that wage applied to a case originally filed in the early 80’s. The client simply could not support his wife and child on such a salary and was forced to seek similar employment elsewhere.

About The Author
Julie Soininen is an attorney in the firm Montagut & Sobral P.C. in Virginia, where her area of expertise include labor certifications, motions, appeals, investor visas and specialized knowledge visas. Her previous professional experience includes working as an attorney/advisor for the U.S. Department of Labor’s Office of the Administrative Law Judges where her responsibilities included drafting several decisions for the Board of Alien Labor Certification Appeals. She frequently serves as a judge at mock trials and client counseling competitions at her law school.