http://murthy.com/bulletin.html
In the almost ten years since the American Competitiveness in the Twenty-First Century Act (AC21) became law, many articles on various AC21 nuances and issues have been written to benefit our MurthyDotCom and MurthyBulletin readers
. One topic that has not yet been addressed is the ability to utilize the AC21 provisions in the context of a removal (previously called deportation) hearing. Under a 2010 case decision of the Board of Immigration Appeals (BIA), AC21 can be applied when seeking to adjust status to permanent residence before an immigration judge in a removal case. As explained here, this was not always the case.
History of AC21 and USCIS Guidance
AC21 is a law for which the U.S. Citizenship and Immigration Services (USCIS) still has not issued any regulations. Many of the details on AC21 are therefore addressed only in USCIS memos.
The very first government-published guidance on AC21 was issued June 25, 2001. This was reported in our article, INS Finally Issues its Initial Guidance on AC21 in June 2001(25.Jun.2001). That guidance still remains in effect today. That earlier article explains two key conditions for porting a green card case based on a new job. The adjustment-of-status application (Form I-485) must be pending for at least 180 days, and the new job must be in the same or similar occupational classification as the job offer upon which the case was initially based.
I-140 Petition Must be Approvable When Filed
Fundamental to the use of AC21 is the validity of the underlying I-140 employer petition. In AC21 the reason the green card case can potentially be approved via a new job offer is that the I-140 petition remains valid, notwithstanding the change in job offer. The USCIS addressed a series ofFAQs related to processing the I-140.
The AC21 provisions also can be utilized in the situation in which an I-485 application is pending for more than 180 days, but the I-140 is also still pending without approval. In such a situation, if the USCIS receives evidence of eligibility for AC21 portability, the I-140 is supposed to be approved if it was approvable when it was filed. This then paves the way for an I-485 approval either by the USCIS or, as we explain, by an immigration court.
Prior Uncertainty on Immigration Judge's AC21 Authority
In 2005, the BIA ruled that immigration judges did not have authority to make decisions under the AC21 green card provisions. The decision, in a case known as Matter of Perez Vargas, was based upon the fact that the AC21 portability provisions involve a determination of the ongoing validity of the I-140 employer petition.
Decisions on I-140s cannot be made by immigration judges; the USCIS makes I-140 decisions, as a matter of jurisdiction established within the immigration laws. This is not disputed. Thus, the BIA determined that, if a person in removal proceedings attempted to utilize the AC21 green card portability provisions, the judge did not have that authority. While immigration judges can make decisions regarding I-485 applications, the BIA in Matter of Perez Vargas, determined that AC21 involved a decision on the validity of the I-140, which was outside the scope and power of the immigration courts.
This was problematic, as AC21 is routinely used for green card cases for individuals who are not in removal proceedings. There is no reason under policy that individuals in removal should not have this option as a way to become permanent residents. It was simply a procedural matter that left the immigration courts without the power to apply AC21. This was, put simply, a crack in the system.
Many Appeals Courts Disagree with 2005 BIA Decision
A great deal of controversy arose over the 2005 Perez Vargas decision. The decision was appealed. The Court of Appeals 4th Circuit disagreed with the BIA's decision and found that immigration judges have power over AC21 portability decisions. Other federal appeals court decisions reached the same conclusion. However, those federal court decisions only applied within the particular states controlled by those federal courts. Thus, there was not uniformity throughout the country.
BIA in 2010 Overrules its Prior Decision
The BIA addressed the issue again in 2010. Both sides in this case, the U.S. government and the foreign national, supported a change in the prior decision. Thus, the BIA reconsidered and in theMatter of Jose Marcal Neto, et al. (PDF 41.1KB), the BIA ruled that immigration judges have the authority to decide whether an individual qualifies for adjustment of status under AC21, as long as the USCIS has approved the I-140 petition.
BIA Helps AOS Applicants in Removal Proceedings
The issues are somewhat complex, but the reasoning in the decision, for those who wish to review it, is part of the evolution of the AC21 provisions. The lack of regulations on AC21 in part led to the confusion and years of litigation over the matter of whether immigration courts have this particular power. This 2010 change can be greatly beneficial to one in removal proceedings, who is otherwise eligible for approval of a pending I-485 under AC21 portability.
Recommendation to Notify USCIS on AC21 Portability
Fortunately, most MurthyDotCom and MurthyBulletin readers will not have to face removal proceedings. Even those individuals who try to fully comply with immigration laws, however, can run into status problems due to job loss or mistakes in immigration filings. The ability to use the AC21 provisions in the removal context is another reason we recommend notifying the USCIS regarding changes in employment that meet the AC21 requirements. It generally is best to create a clear record of eligibility for approval, with documentation that the new job is within the same or similar job occupational classification as the original green card job offer
