Hey! I Think You Forgot Something: Adjustment Of Status Portability And The I-485 Receipt Notice
For once, the USCIS makes sense. In response to the tsunami of adjustment of status cases filed this summer, over 300,000 by some estimates, USCIS late last week removed the requirement that H and L non-immigrants coming back to the United States from a trip abroad had to present a receipt notice on Form I-797 for their pending adjustment of status application to preserve their integrity against unintentional abandonment. Let the good times roll, right? Thank goodness, we will no longer have to answer endless calls from anxious clients wondering with natural but ill-concealed impatience when they can travel once again. Finally, the need to put their lives and their jobs on hold waiting like Godot for a receipt notice that seemingly never came was as dead as the dodo bird, a bad idea whose time had mercifully come and gone. At long last, we can all exhale. Right? Well… maybe. Read on.
The travel outside of the United States by an applicant for adjustment of status …and who is in lawful H-1 or L-1 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien remains eligible for H or L status, is coming to resume work with the same employer for whom he or she had previously been authorized to work as an H-1 or L-1 nonimmigrant... ( emphasis added). 72 Fed. Reg. 61791, 61792 (Nov. 1, 2007)Now, there's the rub. An H or L adjustment applicant who has moved on up the road under the sheltering arms of AC 21 portability has NOT been authorized to work for this new employer who has filed nothing on his or her behalf. Confined by the exact language of the regulation, the adjustment of status is gone because the USCIS has not been asked to ratify the relocation; nothing filed, nothing approved. The alien is NOT coming back to work for the old employer who sponsored the H or L petition. In blissful reliance upon AC 21 adjustment of status portability, she has taken a limo uptown and is ready for the future. As a result, a suspicious CIS adjudicator with a green eye shade and a fine eye for detail, might well find that such a vagabond has abandoned the adjustment of status much to her utter surprise and profound horror.
A look at the calendar may explain what is going on here. The legacy INS initially eliminated the advance parole requirement for pending adjustment of status applicants, thus allowing international travel on the basis of valid L1 or H1B nonimmigrant visas, back on June 1, 1999 at 64 Fed. Reg. 29209. This was long before AC21 took effect on October 17, 2000. In those slower, simpler times, adjustment of status portability was not even a gleam in your father's eye. H1B portability had yet to be born. In commenting on the regulatory change, then deemed to be a giant leap forward, Robert Bach, Executive Associate Commissioner for Policy and Planning, noted that " A pending adjustment application, however, does not relieve nonimmigrant H-1 and L-1 aliens of the requirement to comply with the terms of their nonimmigrant classification, including restrictions on…change of employer…changing employers without first obtaining approval from the Service will cause the alien to lose his or her valid H-1 or L-1 nonimmigrant status." http://www.aila.org/Content/default.aspx?docid=14055. Back in the day, adjustment of status meant something, by G-D, it was for life. An employer sponsored you, then you stayed sponsored as long as the adjustment was up for decision no matter how green the pastures were over the horizon. It was in that climate and under those assumptions that the legacy INS relaxed the advance parole requirement with the proviso that the returning adjustment alien had to present the I-797 adjustment receipt notice as the price of readmission . So, when the USCIS acknowledged that it could not continue to hold adjustment of status applicants hostage to their inability to churn out receipt notices in a timely fashion, they wisely dropped that requirement but neglected to take note of the lurking dangers that remained hiding in the shadows for adjustment applicants who had already ported.
This is not the first time that adjustment portability under Section 106 (c) of AC 21 had collided with other immigration law changes. Cast your minds back to March of 2005 when USDOL inaugurated its on-line PERM application system for labor certification. There is a direct conflict between the concept of adjustment of status portability under AC 21 and the open-ended capacity of a Certifying Officer under PERM to revoke a previously-approved labor certification for virtually any reason at any time. In an April 24, 2002, letter to Denver immigration lawyer Emily Curray, Efren Hernandez, USCIS Director of Business and Trade Services, opined that revocation of an approved immigrant visa petition on Form I-140 after 180 days would not prevent the alien beneficiary from transferring to a new job with a successor employer as an adjustment applicant. http://www.aila.org/Content/default.aspx?docid=8994. Subsequently, in an August 4, 2003 memorandum to Service Center and Regional Directors, William Yates, then USCIS' Acting Director for Operations, reinforced this same interpretation by mandating that withdrawal of an approved I-140 petition after an I-485 adjustment had remained on the books for 180 days would have zero effect on the continued viability of that I-140 as the underlying basis for attainment of lawful permanent resident status. Clearly, it is the stated position of the USCIS that the employer who files an I-140, or a labor certification, has no continuing role to play once the magical 180 day mark has been reached; at that point, It belongs to the alien http://www.aila.org/Content/default.aspx?docid=9196 ( HQB CIS 70/6.2.8-P) ( note the designation "P" is important since it represents USCIS policy as opposed to non-binding commentary on a specific set of facts for a single case).
PERM has no such statute of limitations. If the Certifying Officer decides at any time after approval that certification of the job was not justified, even in the absence of fraud or willful misrepresentation of a material fact, a notice of intent to revoke is sent to the employer who filed the ETA 9089 labor certification. What if the alien has taken advantage of AC 21 adjustment of status portability? The alien is not notified, even if the adjustment of status has been on file for 180 days; the new employer for whom the alien is now working is left blissfully unaware that there may be a problem, even if that is the employer who cares the most and has the most at stake. Only the old employer for whom the alien no longer works has a chance to answer. Now, it is possible that this may be an ethical employer who wants to do the right thing or simply preserve its reputation for honesty and square dealing. It is possible that this employer may not want a revocation to prejudice the prospects for future labor certification. All these entirely plausible reasons may prompt such an employer to resist revocation. Maybe, but it is just as likely, or even more so, that this spurned employer will not contest revocation as payback to the ambitious but discontented alien who crossed the street to work for the competition. Then what? If the USCIS says that it does not matter if an employer withdraws an approved I-140 immigrant petition once an adjustment of status has been pending for 180 days, if it is of no moment should the USCIS revoke its I-140 approval then, what possible purpose can be served by the Certifying Officer revoking a labor certification? How secure is AC 21 adjustment portability should that happen?
On one level, the failure of USCIS to protect adjustment of status portability when it eliminated the need for adjustment applicants to wait for their receipt notice before engaging in international travel is not a big deal; an accidental omission, it can be fixed by a technical amendment or clarifying memorandum. Drill down a bit deeper and you will perhaps find a larger meaning, one that suggests, yet again, the high cost of complexity. If we require a "system" of law to be internally consistent and possess a unifying rationale, we have no "system" of US immigration law as such. What we do have is an ever-increasing mountain of hyper-technical statutes and implementing regulations designed to respond to varying domestic political interests, administrative snafus, or world crises without any real consideration being given to figuring out what they all have to do with each other. Those who work in the system and know it best are not interested in getting rid of the mess in Washington; in fact, they do not even see this as their role. Look at semi-annual agenda for any federal agency involved in immigration, or scan the roster of topics to be discussed at any conference on immigration law. The need to explain and solve the contradictions in the system will not be there.
Such complexity has a high price. It's continued existence makes it virtually impossible to have an enlightened national conversation on immigration and strangles in the cradle any initiative to nurture a sustained examination into what kind of an immigration system we want and what we are willing to pay to get it. The same public that does not understand the laws we have can hardly be expected to support them against relentless and well- financed attack by nativist critics who lie in wait for the moment to strike. Rather than being idealistic claptrap for which busy lawyers and zealous advocates have no time and less inclination, the call to enlist in a crusade for simplification of our immigration laws to further the national interest is the one true goal whose achievement makes everything else we want to do possible. If we only seek to figure out how to get around the system that we have now, to make its contradictions and lack of logic work for our benefit, we will never be able to protect our clients from the next surprise. The center cannot hold it does not exist. We must create it, to fashion a rational immigration matrix where enforcement is not a substitute for planning nor idealism the false enemy of efficiency. If we do not do that, if we wait for the future to happen, and do not seize it as our own, we will most certainly not like it when it comes.
© Copyright 2007 by Gary Endelman. All rights reserved.
Editor's note: The following letter (11/09/07 ID) was written by Gary Endelman after this Article was published on 11/07/07.
Having heard from some eagle-eyed readers, I wish to clarify and correct some points made in my article (11/07/07 ID). The issue is how adjustment of status portability comports with H-1B portability and whether an adjustment applicant in L1 status who has ported to a new employer under AC 21 Section 106(c) can take advantage of the "return on receipt" rule. It is certainly true under AC 21 Section 105 that the filing of a non-frivolous H-1B petition by a new employer authorizes the alien beneficiary to work for that employer before final approval. If that is the previous work authorization that the revised receipt rule speaks of, then I see no problem. Someone for whom a new H petition has been filed can take advantage of AC 21 Section 106(c) adjustment of status portability and come back to the USA without advance parole or the I-485 receipt. For these aliens, H-1B portability provides all the authorization they need to come and go. As a practical matter, it might be better to wait until you have the actual H-1B receipt although the statute only requires submission of a non-frivolous petition and, if you do not have the actual I-797 receipt notice, the January 29, 2001 AC 21 Memo by Michael Pearson (HQOPS 70/20) allows presentation of other "credible evidence". What happens, however, if the adjustment applicant who leaves the USA and intends to return not to work for Employer No. 2 whose H1B petition remains pending but for Employer No. 3 who has filed nothing? Then, presumably, the alien cannot return as an H1B but would need advance parole to avoid any imputation of fraudulent entry. If the alien ports after coming back to the USA, would the alien have to stay with Employer No.2 for a decent interval, perhaps 60 or 90 days for the same reason? If they have taken advantage of AC 21 Section 106(c) portability before leaving the USA, then it seems clear that they need advance parole to come back because they are not maintaining valid H status. The receipt rule, and its relaxation, do not contemplate, or make allowance for, multiple porting, a not uncommon phenomenon in an increasingly fluid job market. For our L1 friends, there is no L portability, of course, so any L1 who invokes AC 21 Section 106(c) portability clearly needs advance parole to return. All of these are good points and I welcome their inclusion. The need for clarification remains. We cannot safely assume that the "employer" for H-1B portability under AC Section 105 and adjustment of status portability pursuant to AC 21 Section 106(c) are always going to be one and the same. The entire question of the relationship between these two provisions would benefit from USCIS clarification at the national level and I hope that, in some small measure, my initial article advances that conversation.
Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.
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