MARCAL NETO

Cite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669

Matter of Jose MARCAL NETO, et al., Respondents

File A095 861 144 - Boston, Massachusetts

File A095 861 145

File A095 861 146

Decided January 21, 2010

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Immigration Judges have 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) (2006), after the alien’s change in jobs

or employers. Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), overruled.

FOR RESPONDENTS: Kevin R. Leeper, Esquire, Framingham, Massachusetts

AMICI CURIAE: Mary A. Kenney, Esquire, Washington, D.C.1

FOR THE DEPARTMENT OF HOMELAND SECURITY: Elena M. Albamonte, Appellate

Counsel

BEFORE: Board Panel: FILPPU and PAULEY, Board Members. Concurring Opinion:

GREER, Board Member, joined by PAULEY, Board Member.

FILPPU, Board Member:

In Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), we held

that Immigration Judges lack jurisdiction 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)

(2006), after the alien’s change in jobs or employers. Since our decision

in Matter of Perez Vargas, three circuit courts, including the United States

Court of Appeals for the Fourth Circuit, which has jurisdiction over Matter

of Perez Vargas, have rejected that case. Sung v. Keisler, 505 F.3d 372 (5th

Cir. 2007); Matovski v. Gonzales, 492 F.3d 722 (6th Cir. 2007); Perez-Vargas

v. Gonzales, 478 F.3d 191 (4th Cir. 2007). The respondents argue on appeal

1

We acknowledge and appreciate the very helpful briefs submitted by the parties and

by amici curiae, the American Immigration Law Foundation and the American Immigration

Lawyers Association.

169

Cite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669

that we should accept the reasoning of these cases and withdraw from Matter

of Perez Vargas.

We asked for briefing on this issue, and the parties are in agreement

that we should adopt the rationale set forth in the circuit court cases cited

above. We will sustain the respondents’ appeal and remand for further

proceedings. As more fully explained below, we overrule Matter

of Perez Vargas, and we now hold that Immigration Judges and the Board

of Immigration Appeals have jurisdiction to render a decision on the

portability of a job under section 204(j) of the Act.2 In other words,

Immigration Judges may determine whether an approved employment-related

visa petition, a Form I-140 (Immigrant Petition for Alien Worker), remains

valid when an alien changes his or her job but alleges that the new job

is similar to the original position.

I. FACTUAL AND PROCEDURAL HISTORY

The lead respondent, a native and citizen of Brazil, is the beneficiary

of an approved I-140 employment-based visa petition.3 He and his family filed

applications for adjustment of status with the United States Citizenship and

Immigration Services (“USCIS”) in 2002. Their applications were denied

in 2005 because, among other things, the USCIS determined that the lead

respondent was inadmissible pursuant to section 212(a)(6)(C) of the Act,

8 U.S.C. § 1182(a)(6)(C) (2000), for engaging in fraud. The respondents were

issued a Notice to Appear (Form I-862) by the Department of Homeland

Security (“DHS”) and renewed their applications for adjustment of status

before the Immigration Judge.

In a decision dated March 23, 2007, the Immigration Judge found the

respondents removable under section 237(a)(1)(B) of the Act, 8 U.S.C.

§ 1227(a)(1)(B) (2006), as aliens who remained in the United States longer

than permitted. However, the Immigration Judge determined that the DHS had

not sustained its burden of establishing the lead respondent’s removability

as an alien who was inadmissible under section 212(a)(6)(C)(i) of the Act for

obtaining an immigration benefit by fraud or willful misrepresentation.

Because the respondent no longer worked for the petitioning employer at the

time of his hearing, the Immigration Judge also found that he lacked

jurisdiction to determine the portability of the respondent’s new employment

2

Pursuant to 8 C.F.R. § 1003.1(g) (2010), this case has been designated as a precedent

by the Board en banc.

3

The respondents’ claim is based on the lead respondent’s application for relief, and

we therefore refer to the lead respondent when we reference a single respondent. The other

respondents are the lead respondent’s wife and daughter.

170

Cite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669

and therefore denied his application for adjustment of status pursuant to Matter

of Perez Vargas.

The respondents appealed the Immigration Judge’s decision, alleging that

he erred in determining that he lacked jurisdiction to decide the issue

of portability under section 204(j) of the Act, and arguing that the adjustment

of status application should have been adjudicated.4 The Board scheduled oral

argument and asked the parties to brief issues pertaining to the circuit court

law that rejected Matter of Perez Vargas. We canceled oral argument,

however, when it became apparent that both parties, supported by an amici

curiae filing, advocated that we overrule Matter of Perez Vargas.

II. ANALYSIS

In order to obtain lawful permanent resident status based on a visa petition

filed by an employer, an alien must complete a three-step process. Matovski

v. Gonzales, 492 F.3d at 726-27. The alien’s employer completes the first two

stages by filing an application for employment certification with the

Department of Labor and, upon gaining labor certification, filing an I-140 with

the DHS. Id. at 727. If the visa petition is approved and visa numbers are

immediately available, the alien’s adjustment application can be granted. The

alien may renew an adjustment of status application before an Immigration

Judge if it is denied by the USCIS.5 Id.; see also 8 C.F.R. § 245.2(a)(5)(ii)

(2010).

This entire process can take a significant amount of time. The Department

of Labor must determine that there are not sufficient workers available and that

the alien’s employment will not adversely affect the wages and working

4

The respondents also raise the issue whether the Immigration Judge erred in denying

their request for a continuance. Specifically, they assert that the Immigration Judge’s denial

of a continuance prevented them from adequately preparing for the evidentiary hearing.

As we have stated before, a motion for a continuance is within the sound discretion of the

Immigration Judge, and his decision denying such a motion will not be reversed on appeal

unless the alien establishes, by a full and specific articulation of the particular facts involved

or evidence that he would have presented, that the denial caused him actual prejudice and

harm and materially affected the outcome of his case. See Matter of Sibrun, 18 I&N Dec.

354 (BIA 1983); 8 C.F.R. § 1003.29 (2010). In light of our decision sustaining the

respondents’ appeal and remanding for further proceedings, we decline to address this issue.

5

We note, however, that an Immigration Judge has no jurisdiction over the adjustment

application of an “arriving alien” unless the alien previously filed an adjustment application,

departed from and returned to the United States under advance parole, had the adjustment

application subsequently denied by the USCIS, and was placed in removal proceedings

either at the time he or she was paroled into the United States or after the application was

denied. 8 C.F.R. §§ 1245.2(a)(1)(ii)(A)–(D) (2010).

171

Cite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669

conditions of United States workers. Matovski v. Gonzales, 492 F.3d at 733;

see also section 212(a)(5) of the Act. In addition, the adjudication by the DHS

of an I-140 or an application for adjustment, or both, can result in further

delay. As a result, Congress enacted section 204(j) of the Act as part of the

American Competitiveness in the Twenty-First Century Act of 2000, Pub. L.

No. 106-313, 114 Stat. 1251, 1254, “to provide ‘[j]ob flexibility for long

delayed applicants for adjustment of status to permanent residence.’”

Matovski v. Gonzales, 492 F.3d at 733 (quoting the heading of section 204(j)

of the Act). Section 204(j) provides:

A petition under subsection (a)(1)(D) for an individual whose application for

adjustment of status pursuant to section 245 has been filed and remained

unadjudicated for 180 days or more 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.6

However, as the Sixth Circuit pointed out, no regulations have yet been

promulgated to provide guidance on how to determine the portability of a job

change underlying an employment-based visa petition. Matovski v. Gonzales,

492 F.3d at 733.

To some extent, this lack of guidance persuaded us in Matter of Perez

Vargas, 23 I&N Dec. 829, to decide that Immigration Judges lack jurisdiction

to render portability determinations under section 204(j) of the Act. We relied

on the fact that a determination under section 204(j) requires some expertise

in assessing the similarity in certain types of employment. Id. at 831. “[E]ven

assuming the techniques used in the different jobs involved similar principles

and methods, it would be difficult for the Immigration Judge to assess whether

the new job description included the same level of responsibility and skill, and

whether the job would have an adverse impact on the United States labor

market,” which is a factor taken into consideration by the Department of Labor

when assessing whether to grant labor certification for the employment-based

visa petition. Id. at 831-32; see also id. at 833-34.

In addition, our rationale for previously finding that Immigration Judges

lack jurisdiction to decide whether a visa petition remains valid when an alien

changes jobs or employers rested on the fact that the DHS has jurisdiction

to decide the validity of visa petitions in the first place. Id. at 831. In sum,

we reasoned that since “[o]riginal jurisdiction over employment-based

6

As the Fourth Circuit noted, “The cross-reference to subsection (a)(1)(D) appears

to be in error. Subsection (a)(1)(F) seems to be the intended subsection, given Congress’

redesignation of subsection (a)(1)(D) as subsection [(a)(1)(F)] by Section 1503(d)(1) of the

Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat.

1464, 1521.” Perez-Vargas v. Gonzales, 478 F.3d at 192 n.2.

172

Cite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669

visa petitions lies with the DHS following issuance of a labor certification

by the Department of Labor . . . [i]t therefore follows that any redetermination

of the visa petition’s validity would also lie with these government entities,

and not with the Immigration Judge.” Id. at 832 (citation omitted).

On direct appeal, the Fourth Circuit disagreed with our decision that section

204(j) of the Act is a separate jurisdictional provision. Rather, the court found

that section 204(j) applies to aliens whose applications for adjustment of status

remain pending for more than 180 days and, therefore, that the relevant

adjudication involves adjustment of status. Perez-Vargas v. Gonzales, 478

F.3d at 194. Since the Attorney General has, aside from a few exceptions,

vested Immigration Judges with the exclusive jurisdiction to decide

applications for adjustment of status by aliens in removal proceedings, the

court concluded that jurisdiction to make a section 204(j) determination also

rests with Immigration Judges. Id. This determination is “simply an act

of factfinding incidental to the adjustment of status process.” Id.; see also

Sung v. Keisler, 505 F.3d at 376 (adopting the Fourth Circuit’s reasoning

in Perez-Vargas).

The amici brief argues that these circuit court cases found that the plain

language of the statute makes clear that Congress intended Immigration Judges

to have jurisdiction over section 204(j) determinations. Therefore, according

to amici, under step one of the Supreme Court’s two-step analysis for

interpreting statutes in Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984), we are required to find that Immigration

Judges have exclusive jurisdiction over portability issues. See also Nat’l

Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).

We do not agree that section 204(j) is so plainly written. There is no direct

reference to Immigration Judges in section 204(j), and they are certainly not

given exclusive jurisdiction over such determinations merely because they

have jurisdiction over applications for adjustment of status in removal

proceedings.

Nevertheless, we do not find it unreasonable, particularly with the way these

cases have developed, to now find that Immigration Judges do have

jurisdiction over section 204(j) determinations. One of our assumptions

in Matter of Perez Vargas was that the DHS would give an Immigration Judge

an indication as to whether an alien’s job was portable under section 204(j)

of the Act. However, the DHS has now informed us in its brief that this is not

the case. The agency does not see itself as having jurisdiction over section

204(j) determinations once an alien is in removal proceedings. We lack

authority to force the agency to make such a determination. That leaves only

the Immigration Judge to make this decision. We certainly agree with the

parties that the respondent should be able to obtain a decision on the

portability of the new employment under section 204(j). That was Congress’s

intent in enacting section 204(j), and not making such a determination

173

Cite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669

frustrates the adjustment process for these aliens. Since the DHS is not going

to make the section 204(j) determination when it lacks jurisdiction over the

adjustment application, we agree that the Immigration Judge must do it. Any

other conclusion would result in unfairness.

The difficulties in procedurally navigating the transfer of the case between

an Immigration Judge and the DHS for portability determinations created

unfairness for aliens seeking resolution of their adjustment applications.

As noted by the Fourth Circuit, the result of our decision in Matter of Perez

Vargas placed aliens who are in removal proceedings at a disadvantage

compared to those whose adjustment applications were pending before the

DHS. Perez-Vargas v. Gonzales, 478 F.3d at 195. While the latter would

be permitted to request a section 204(j) determination directly from the DHS,

aliens whose applications were pending in removal proceedings could

not request a section 204(j) determination from the Immigration Judge

to determine the continuing validity of their visa petitions. This apparent

inability to obtain a portability determination frustrated congressional intent.

Likewise, the Sixth Circuit found that our decision in Matter of Perez Vargas

contradicted “the expressed intent of Congress to protect the job flexibility

of long-delayed applicants.” Matovski v. Gonzales, 492 F.3d at 737.

Upon reconsidering our prior decision, and particularly in light of the

DHS’s interpretation of its role in the section 204(j) process, we are persuaded

to agree with these recent circuit court decisions that Matter of Perez Vargas

is contrary to Congress’s intent to allow an alien to obtain a portability

determination and that there is no express jurisdictional bar to an Immigration

Judge’s authority to determine the portability of a job under section 204(j).

The purpose of the statute is to allow an alien to obtain a determination about

the continued viability of his or her visa petition after a change in employment

when the adjustment application has been pending for more than 180 days.

It is clear that Immigration Judges do not have authority to decide whether

a visa petition should be granted or revoked. See 8 C.F.R. § 204.1(e) (2010);

see also Matter of H-A-, 22 I&N Dec. 728, 736 (BIA 1999) (noting the

Board’s lack of jurisdiction to assess the evidence submitted in support

of a visa petition). However, despite these limitations, Immigration Judges do

have jurisdiction over related issues. For example, Immigration Judges may

examine the underlying basis for a visa petition when such a determination

bears on the alien’s admissibility. See, e.g., Matter of Iesce, 12 I&N Dec. 156

(BIA 1967) (rejecting the respondent’s argument that the fact that she was

issued an immigrant visa while abroad meant she was entitled to be admitted,

and finding her deportable because, as a married woman, she was not entitled

to the fifth-preference visa issued to her as an unmarried daughter); see also

Matter of Mozeb, 15 I&N Dec. 430 (BIA 1975) (finding that although aliens

from Yemen were granted visa petitions based on adoptions abroad by the

American consular officer, they were not entitled to such status based

174

Cite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669

on Islamic law and were therefore not entitled to be admitted); Matter of R-D-,

6 I&N Dec. 581 (BIA 1955) (finding that a Western Hemisphere visa

issued under prior law remained valid where, absent evidence of fraud

or misrepresentation, an employment offer was no longer available, but the

alien had other job opportunities). In fact, section 204(e) of the Act makes

clear that even when a visa petition is approved, the alien is not immunized

from having the basis for the visa petition examined by an Immigration Judge,

if warranted, once the alien is placed in removal proceedings, as part of the

Immigration Judge’s determination whether the alien is entitled to be admitted

to the United States. See Matter of Bark, 14 I&N Dec. 237, 240 (BIA 1972)

(noting that the “statute specifically provides that the visa petition procedure

shall not be construed as entitling an immigrant to enter the United States

if at the time of arrival he is found not to be entitled to the classification

accorded him by the visa petition, section 204(e)”), rev’d on other grounds,

Bark v. INS, 511 F.2d 1200 (9th Cir. 1975).

In the labor certification context, Immigration Judges may assess

whether the representations forming the basis for a labor certification approval

were accurate, despite not being allowed to actually approve labor

certifications, even as to jobs listed under a precertified list of occupations.

Compare Matter of Belmares-Carrillo, 13 I&N Dec. 195 (BIA 1969)

(holding that an Immigration Judge had authority to determine whether

an alien was properly qualified for labor certification necessary for

an employment-related visa), with Matter of Grove, 13 I&N Dec. 572 (BIA

1970) (finding that an Immigration Judge had no authority to consider whether

a nonpreference applicant for adjustment of status was qualified for

precertification under Schedule C of 29 C.F.R. § 60.3, which authorized only

the District Director to make such a determination). See generally Matter

of Ortega, 13 I&N Dec. 606 (BIA 1970) (affirming the Immigration Judge’s

determination that the alien’s actual job responsibilities were not the same

as those for the profession identified in the labor certification); Matter

of Welcome, 13 I&N Dec. 352 (BIA 1969) (finding that the Board had

authority to determine the validity of a labor certification when the alien knew

the certified job was no longer available prior to departure from abroad);

Matter of Stevens, 12 I&N Dec. 694 (BIA 1968) (finding, under prior law, that

where an alien was no longer employed by the employer who obtained the

labor certification submitted in conjunction with her application, the

certification was no longer valid for adjustment of status purposes and she was

statutorily ineligible for adjustment of status in the absence of a new

certification).

We recognize that a section 204(j) determination might be difficult for

Immigration Judges. Our prior decision in Matter of Perez Vargas discussed

the fact that judges may lack expertise in making such determinations.

Nevertheless, we anticipate that there will be cases where the new job is very

175

Cite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669

similar to the original job, which will result in a relatively easy determination

for the Immigration Judge, and, barring any other eligibility issues, the alien

will be granted adjustment of status. Likewise, where the new job is very

different from the original one, a decision to find the job not portable may well

be fairly easy.

In cases where portability is not readily apparent, the Immigration Judge

may need to grant continuances for the parties to obtain and submit

evidence in support of, or in opposition to, a finding of portability. See Matter

of Rajah, 25 I&N Dec. 127 (BIA 2009) (stating that an alien’s unopposed

motion to continue ongoing removal proceedings to await the adjudication

of a pending employment-based visa petition should generally be granted

if approval of the visa petition would render him prima facie eligible for

adjustment of status); see also Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009)

(identifying factors to be considered in determining whether to grant

a continuance in similar cases involving pending family-based visa petitions).

While we recognize that our decision may result in Immigration Judges

often rendering decisions of first impression, we are confident that section

204(j) determinations are not outside the scope of their duties in immigration

matters. Immigration Judges, like other trial judges generally, are often

required to determine factual disputes regarding matters on which they possess

little or no knowledge or substantive expertise, and, in making such

determinations, they typically rely on evidence, including expert testimony,

presented by the parties.

As a final matter, we believe that allowing Immigration Judges to make

section 204(j) determinations is more in line with the legislative purpose of the

American Competitiveness in the Twenty-First Century Act, which appears

to be intended to free aliens from the need to file new employment visa

petitions, or to obtain formal reapproval of prior petitions, when they change

jobs after a significant delay in the adjudication process. Our decision

in Matter of Perez Vargas effectively required an alien to obtain reapproval

from the DHS before an Immigration Judge could adjudicate the adjustment

of status application. As such, it went against congressional intent to allow for

job flexibility in long-delayed applications for adjustment of status. See

Perez-Vargas v. Gonzales, 478 F.3d at 195; see also Matovski v. Gonzales,

492 F.3d at 737. Accordingly, we overrule our decision in Matter of Perez

Vargas.

ORDER: The respondents’ appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration Judge

for further adjudication of the respondents’ request for adjustment of status.

176

Cite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669

CONCURRING OPINION: Board Member Anne J. Greer, in which Roger A.

Pauley, Board Member, joined

Both the respondent and the Department of Homeland Security (“DHS”)

now request that we vacate Matter of Perez Vargas, 23 I&N Dec. 829 (BIA

2005). The Government’s change of position in this regard, combined with the

decisions in three circuit courts of appeal to overrule Perez Vargas, provides

a meaningful impetus for us to do so. I therefore reluctantly join with the

majority in concluding that the time has come for Immigration Judges and the

Board to take jurisdiction in all circuits over portability determinations under

section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j)

(2006). I recognize that nothing explicitly prohibits our jurisdiction and that

Immigration Judges, as finders of fact, can make these determinations. Yet

I write separately to explain why I believe this to be an undesirable shift in the

law.

Section 204(j) was enacted in response to delays by the United States

Citizenship and Immigration Services (“USCIS”) in adjudicating adjustment

of status applications, which impeded aliens from changing employment.

Section 204(j) was designed to give job flexibility to these adjustment

applicants. Without this provision, an alien’s change in job or employer

while his adjustment application was pending would invalidate the

employment-based visa petition and labor certification, thereby rending him

ineligible to adjust status. During the years the adjustment application was

pending, aliens were bound to the certified job and employer. Section 204(j)

frees aliens to make such changes without invalidating the underlying Form

I-140 (Immigrant Petition for Alien Worker) and labor certification when the

initial adjustment application is not adjudicated by the USCIS in a timely

manner. Matter of Perez Vargas, 23 I&N Dec. at 832.

While section 204(j) is temporally linked to the adjustment application, the

evaluation of the new position’s characteristics approximates the labor

certification and visa petition examination process.1 Section 204(j) is not

implicated unless the USCIS does not complete the adjustment of status

adjudication within 180 days of filing. If the alien changes jobs after that

point, he may request a portability determination from the USCIS to ascertain

whether the new position is in the same or similar occupational classification

as the job for which the certification was issued.

1

The section 204(i) portability provision for professional athletes is similar to the section

204(j) provision, but it is not linked to the adjustment application. Similarly, for purposes

of section 204(i), the question is whether the I-140 remains valid despite a change

in employment.

177

Cite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669

Since 2001, the DHS (formerly the Immigration and Naturalization Service)

has represented that regulations were being formulated to address section

204(j) determinations. See, e.g., Matter of Perez Vargas, 23 I&N Dec. at 833

n.5. In the absence of regulations, the DHS has developed procedures and

issued extensive guidance for handling section 204(j) determinations. When

making a portability determination, USCIS adjudicators are directed to use the

Department of Labor’s published occupational classification system

to compare the occupational code assigned to the certified job with the code

that is appropriate to the new job. They also compare the jobs in terms of the

listed job duties and the wage offered. This sort of analysis can be likened

to successor-in-interest determinations in adjudicating I-140s. See id. at 832.

Further, the Administrative Appeals Office (“AAO”) issues administrative

decisions to provide national interpretation for recurring 204(j) issues

of significance. See, e.g., Matter of Al Wazzan, A95 253 422 (AAO Jan. 12,

2005), available at 2005 WL 1950775 (holding that the I-140 must

be approved for an alien to port).2

I find support in the administrative appellate AAO decisions and the

reviewing Federal courts for my position that portability is more rationally

related to the underlying visa petition than to the adjustment application.

Recently, in Herrera v. U.S. Citizenship and Immigration Services, 571 F.3d

881 (9th Cir. 2009), the United States Court of Appeals for the Ninth Circuit

found that nothing in section 204(j) of the Act precluded the USCIS from

revoking Herrera’s approved I-140 after she had used it to port to a new

employer. The court agreed with the AAO’s analysis of section 204(j) that for

an I-140 to remain “valid” with respect to the new job, it “‘must have been

filed for an alien that is “entitled” to the requested classification.’” Id. at 887

(quoting the AAO). Consequently, Herrera’s adjustment application was

properly denied because an alien cannot port on the basis of a revoked I-140.

Breaking the link between section 204(j) determinations and the I-140

adjudication will only complicate the adjudication of an adjustment application

in removal proceedings. For example, if a respondent in removal proceedings

seeks to port before the USCIS adjudicates his I-140, an Immigration Judge

is faced with the prospect of continuing the case to allow the USCIS

to adjudicate the I-140. Presumably, the case would then need to be returned

for the Immigration Judge to make a portability determination under section

204(j) and adjudicate the adjustment application. It would be far more

efficient for the employment criteria to be evaluated as a whole within

a structure designed for that purpose at the USCIS.

2

The potential for divergent sources of precedential authority emerging from the AAO and

the Board raises the prospect of additional confusion, although Board authority will

be binding. 8 C.F.R. § 1003.1(g) (2010).

178

Cite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669

Significantly, section 204(j) was not incorporated into section 245 of the

Act, 8 U.S.C. § 1255 (2006), which governs the adjustment of status process.

It is undisputed that the DHS’s USCIS has exclusive jurisdiction to adjudicate

visa petitions. After an investigation, the USCIS is authorized to approve

a visa petition if the facts stated in the petition are true and the alien is eligible

for the classification sought. See section 204(b) of the Act. Section 204 of the

Act specifies persons who may file visa petitions, describes circumstances that

preclude petition approval, and authorizes certain petitions to remain valid

despite a change in employment. Because only the USCIS acts on visa

petitions, only it can make section 204 determinations—except now for section

204(j), and then only if removal proceedings have begun.

Immigration Judges do not validate or invalidate visa petitions and labor

certifications. Rather, they may examine the intent of the respondent and the

employer to consummate the employment relationship. The issue presented

in such cases is whether the alien possessed the requisite intent to accept

employment in the certified job. See, e.g., Matter of Ortega, 13 I&N Dec. 606

(BIA 1970) (finding that the applicant was excludable at entry because he had

no intention of accepting the job covered by the labor certification); Matter

of Welcome, 13 I&N Dec. 352 (BIA 1969) (finding that the respondent was

inadmissible at entry because she knew at the time of her admission that the

job covered by the labor certification was no longer available to her); Matter

of Stevens, 12 I&N Dec. 694 (BIA 1968) (denying the respondent’s adjustment

application because she was no longer working at the job covered by the labor

certification).

If the DHS would undertake the portability determination, there are several

procedural mechanisms available to an alien in removal proceedings whose

eligibility to adjust status depends upon a favorable portability determination.

Proceedings could be administratively closed, terminated without prejudice,

or continued while the USCIS determines the continuing validity of the

respondent’s I-140. If the parties agree, the Immigration Judge may grant

administrative closure. See generally Matter of Gutierrez, 21 I&N Dec. 479

(BIA 1996) (stating that administrative closure is used to temporarily remove

the case from the court’s docket and that a case may not be administratively

closed if opposed by either party). Administrative closure avoids the repeated

rescheduling of a case that is clearly not ready to be concluded. Either party

can move to have the case recalendered once the portability determination

is made. Alternatively, the parties could agree that the case be terminated,

thereby allowing the DHS to make the portability determination, as well as the

decision on adjustment of status.

The Immigration Judge could also continue the case to await the

outcome of the portability determination. Immigration Judges routinely

179

Cite as 25 I&N Dec. 169 (BIA 2010) Interim Decision #3669

exercise their discretion over continuance motions for pending visa petitions

in both the family and employment contexts. See Matter of Hashmi, 24 I&N

Dec. 785 (BIA 2009) (discussing the factors to be used when considering

a motion to continue proceedings to await the adjudication of a pending

family-based visa petition); see also Matter of Rajah, 25 I&N Dec. 127

(BIA 2009) (discussing factors to be used when considering a motion

to continue proceedings to await the adjudication of a labor certification

or employment-based immigrant visa petition).

I would prefer to establish a standard to allow the Immigration Judge

to continue the case when a successful portability determination would result

in a prima facie approvable adjustment of status application. The statutory and

regulatory landscape in this area is confusing and complex, which creates

uncertainty in its application. Aliens in removal proceedings have not been

successful in obtaining portability determinations from the DHS, which now

leads to the result we reach here. In Matter of Yauri, 25 I&N Dec. 103 (BIA

2009), we explained how similar confusion led to DHS inaction over a specific

category of adjustment applicants, even in the presence of clearly assigned

jurisdiction.

In my view, USCIS adjudication of portability determinations under section

204(j) would be far more efficient than bifurcating jurisdiction depending

on whether removal proceedings are underway. Nonetheless, this is the result

we are compelled to adopt.

180