AILA 2002 Conference Report : AC21 AOS Portability
Posted Jun 28, 2002

Contrary to rumor, the American Immigration Lawyers (AILA) 2002 Conference in San Francisco did not produce any major announcements regarding the application of adjustment of status portability provisions in the American Competitiveness in the Twenty First Century Act (AC21). The regulations on AC21 have not yet been issued. Neither has INS provided further specific directions or policies on AC21 portability.

AC21 allows for the approval of applications for adjustment of status (Form I-485) in employment-based cases even when the applicant is working for an employer other than the one who filed the labor certification and Immigrant Petition for Alien Worker (Form I-140). The key requirement is that the I-485 must have been pending for 180 days or more in order to trigger eligibility. We have written several MurthyBulletin articles on this subject including, INS Issues Initial Guidance on AC21, from June 25, 2001, and our AC21 Frequently Asked Questions, both available on MurthyDotCom. In recent meetings and conferences with the INS, including our Annual AILA Conference in San Francisco, the INS senior officials did not pronounce any changes to their policy of viewing the labor certification as a future job offer.

The key controversy is the exact meaning of the 180-day requirement and whether the applicant must work for the sponsoring employer during the 180-day period. Immigration lawyers differ on the correct reading of the statute and INS has not provided guidance.

The AC21 provisions statute speaks in terms of allowing a person with an application for adjustment of status, pending for 180 days or more, to change jobs without affecting the validity of the underlying labor certification or I-140 Immigrant Petition for Alien Worker. The new job must be in the same or similar occupational classification as the job for which the labor certification and/or I-140 was filed. Some lawyers interpret this as a requirement that the applicant work for the sponsoring employer during the 180-day period prior to changing jobs. This inference is based upon the use of the words “change jobs” and “new job,” from which it can be argued that in order to change a job and obtain a “new job” there must be an “old job” with the sponsoring employer. This is neither an illogical nor far-fetched reading of the statute.

The opposing view is based on the historical framework of labor certification-based cases that clearly only require a future job offer and not a present one. Requiring the applicant to work for the employer during the 180-day period is contrary to the concept of a future job offer as forming the basis for approval of permanent residence. This is a long-standing, elemental theory of employment-based cases. It would be highly unusual for a law to make such a change in fundamental concept indirectly or by inference. Such changes are ordinarily set out quite specifically. In this view, the use of the terms "change job" and "new job" means job offers, not actual employment, since it is the job offer that has always been the key concept.

The INS has not issued regulations with any specific guidance on how they will address this important issue. They have stated that they will allow for approval of those cases filed under a “justifiable” interpretation of the law during the time prior to the regulations. We addressed this April 12, 2002, in our article Recent Updates : Other issues from March 2002, available on MurthyDotCom.

As attorneys, it is our duty to argue for the interpretation most favorable to our clients, while preparing them for the possibility of the least favorable outcome. We, therefore, have always argued for the interpretation that would not require employment for 180 days. We have filed many such cases with all INS Service Centers using this interpretation and have obtained approvals.

That said, we still recommend taking the safe approach whenever possible. All legal arguments have strengths and weaknesses and this issue is no different. Ultimately, it is the view of the INS (unless successfully challenged in Federal court) that will govern. Therefore, if one can manage, it is best to work for the sponsoring employer during the 180 days after filing. In the current economy, however, this is not always an option.

We at The Law Office of Sheela Murthy have always advised a safe and conservative approach whenever feasible. We often explain to those who contact our Office that there is always a risk that the INS may adjudicate the I-485 within 180 days and then one cannot enjoy the benefits outlined under the AC21 law. We remind our readers once again, there are no regulations on AC21, as yet, and current interpretation could change.

Given the today's attitudes regarding enforcement and immigration matters in general, it is best to be safe. INS officials were initially allowing for acceptance of any good-faith interpretation of the law for cases filed before issuance of regulations on these provisions. This appeared quite favorable and instilled confidence that cases filed for those who had not worked during the 180-day period were likely to be approved. Later, the INS stated that they would use the “justifiable” standard. Clearly, this appears to be more restrictive and we issued advisements at that time. Now, while there have been no new advisements, we are reading between the lines and advising caution. There is a shift in the focus and mood at the INS. Enforcement has moved to the forefront and the atmosphere is far from liberal. Our opinions on the likely interpretations of new laws are always formed by the information we regularly receive from INS, whether in the form of official guidance, statements at AILA meetings, or general trends and attitudes. When the INS changes its approach, we, accordingly, adjust our approach to protect our clients, the immigrant community, and U.S. employers who rely on our judgment.