PEREZ VARGAS

Cite as 23 I&N Dec. 829 (BIA 2005) Interim Decision #3519

In re Minor Humberto PEREZ VARGAS, Respondent

File A29 760 997 - Arlington

Decided October 28, 2005

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

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.

FOR RESPONDENT: David J. Rothwell, Esquire, Washington, D.C.

FOR DEPARTMENT OF HOMELAND SECURITY: Claudia Flower, Assistant Chief

Counsel

BEFORE: Board Panel: COLE, HESS, and PAULEY, Board Members.

COLE, Board Member:

In a decision dated July 17, 2002, an Immigration Judge found the

respondent removable, denied his application for adjustment of status, and

granted him voluntary departure. The Department of Homeland Security

(“DHS,” formerly the Immigration and Naturalization Service (“INS”)) appealed

the Immigration Judge’s grant of voluntary departure, and the respondent

cross-appealed the denial of adjustment of status. In a decision dated April 21,

2004, we sustained the DHS’s appeal, dismissed the respondent’s cross-appeal,

and remanded the record for further proceedings on the issue of the

respondent’s eligibility for voluntary departure. The respondent has filed a

motion to reconsider our decision. The motion will be denied and the record

will be remanded to the Immigration Judge for further proceedings.1

1

In its opposition to the respondent’s motion to reconsider, the DHS asserts that the motion

is inappropriate. The DHS relies on section 5.2(a)(iii)(A) of the Board of Immigration

Appeals Practice Manual, which provides that a motion to reconsider may be filed with the

Board where an appeal has been decided and no case is currently pending. Board of

Immigration Appeals Practice Manual, § 5.2(a)(iii)(A), at 70 (June 15, 2004). However, that

section also suggests that this is a “general” rule, and the next section indicates that the

(continued...)

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I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Guatemala who conceded that he is

removable because he overstayed his nonimmigrant visa. The record reflects

that he was the beneficiary of an approved I-140 visa petition, but that he was no

longer employed by the petitioning employer at the time of his hearing. The

Immigration Judge denied the respondent’s application for adjustment of status

because of his employment status, and he concluded that he lacked jurisdiction

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

§ 1154(j) (2000), which would allow the respondent’s visa petition to remain

valid if he had a new job in the same or a similar occupational classification.2

II. ISSUES

The primary issue on appeal is whether the Immigration Judge has jurisdiction

to apply section 204(j) of the Act in this case. Section 204(j) provides as

follows:

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. 3

The respondent also raises the question whether it was appropriate for us to

remand the record for presentation of additional evidence regarding his

eligibility for voluntary departure.

1

(...continued)

Board will entertain a motion to reconsider following a decision to remand. Id.

§ 5.2(a)(iii)(B).

2

We note that an employment-based visa petition is automatically revoked upon termination

of the petitioning employer’s business. 8 C.F.R. § 205.1(a)(3)(iii)(D) (2005). There is no

evidence that the respondent’s previous employer, Impressions Marketing Group, for whom

he apparently worked from 1997 to 2001, went out of business. The respondent’s counsel

stated that the respondent was discharged due to an “economic downturn.”

3

The reference in the statute to “subsection (a)(1)(D)” appears to be in error. Subsection

(a)(1)(F) is evidently the intended cross-reference, given the 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, tit. V, div. B, 114 Stat. 1464, 1521.

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III. JURISDICTION OF THE IMMIGRATION JUDGE

TO APPLY SECTION 204(j) OF THE ACT

The respondent asserts that the Immigration Judge has jurisdiction to find that

his visa petition remains valid under section 204(j) of the Act. In support of his

argument, the respondent has attached an unpublished decision in which we

found that an Immigration Judge has jurisdiction over an application for

adjustment of status once the alien is in removal proceedings, including the

authority to adjudicate whether the alien’s visa petition remains valid under

section 204(j) of the Act.

In our previous decision in this case, we noted that we were unable to

determine the cases on which the Immigration Judge relied in finding that he

lacked jurisdiction. However, we did not find his determination to be erroneous.

We find no support for the respondent’s argument that an Immigration Judge

acquires jurisdiction over the adjudication of employment-related visa petitions

once the alien is placed in removal proceedings. The case relied on by the

respondent is not a precedent decision. Furthermore, as the DHS points out,

the regulations that deal with the approval of visa petitions do not mention the

Immigration Court, and they specifically grant jurisdiction over the adjudication

of employment-based visa petitions to the DHS Service Centers. See 8 C.F.R.

§ 204.5(b) (2005).

As we stated in Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987), “[I]t

is well established that immigration judges have no jurisdiction to decide visa

petitions, a matter which is solely within the authority of the district director.

Because the DHS has the primary authority to grant visa petitions, we find that

jurisdiction also lies with the DHS to determine whether the validity of an

alien’s approved employment-based visa petition is preserved under

section 204(j) of the Act after the alien’s change in jobs or employers. We

therefore conclude that the Immigration Judges have no authority to make such

adjudications because the regulations give them no jurisdiction over visa

petitions.

Moreover, we agree with the DHS that a determination under section 204(j)

of the Act whether a change in employment affects the viability of an

employment-based visa petition is one which requires some expertise in

assessing the similarity in certain types of employment. The respondent argues

that the employment description on which his visa petition was approved, i.e.,

inspecting wood cabinets under the occupational title of carpentry, is

substantially similar to the new employment that he obtained in 2002, i.e.,

installing marble counters. As is clear from the transcript of proceedings,

however, the Immigration Judge was not confident that these jobs, which involve

two different materials, were the same or similar. Furthermore, even 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

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

Original jurisdiction over employment-based visa petitions lies with the DHS

following issuance of a labor certification by the Department of Labor (“DOL”).

See 8 C.F.R. §§ 204.5(b), (d). It therefore follows that any redetermination of

the visa petition’s validity would also lie with these government entities, and not

with the Immigration Judge. See Matter of Arthur, 20 I&N Dec. 475, 479 (BIA

1992) (noting that an inquiry into the merits of a visa petition would “constitute

a substantial and unwarranted intrusion into the district director’s authority over

the adjudication of visa petitions”); see also Matter of H-A-, 22 I&N Dec. 728,

736 (BIA 1999); Matter of Aurelio, supra, at 460-61; Memorandum from

James A. Puleo, Acting Executive Associate Commissioner, Office of

Operations, to INS officials (Dec. 10, 1993), reprinted in 70 Interpreter

Releases, No. 48, Dec. 20, 1993, at 1676 & app. III at 1692-93 (discussing the

agreement between the INS and the DOL regarding guidelines for handling

changes to labor certifications and employment-based visa petitions where there

is a successor in interest to the original employer).

The legislative history of section 204(j) of the Act and the general process

for obtaining an employment-based visa petition also support our conclusion

that Congress did not intend that the Immigration Judges would determine

whether an alien continues to qualify for a visa petition upon a change in

circumstances. Section 204(j) was created by section 106(c)(1) of the

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

No. 106-313, 114 Stat. 1251, 1254 (“AC21”). The general purpose of the

statute was to meet the United States demand for skilled workers, particularly

those with technical expertise, in light of increasing globalization and a

burgeoning economy. See id.; S. Rep. No. 106-260, at 1-4 (2000), available

at 2000 WL 622763; see also H. Ronald Klasko, American Competitiveness

in the 21st Century: H-1Bs and Much More, 77 Interpreter Releases, No. 47,

Dec. 11, 2000, at 1689.

Section 204(j) was specifically enacted to increase the job flexibility of

aliens who applied for adjustment of status in conjunction with an

employment-based visa petition, and whose applications had been extensively

delayed. See Angelo A. Paparelli & Janet J. Lee, “A Moveable Feast”: An

Analysis of Adjustment of Status Portability under AC21, 6 Bender’s Immigr.

Bull. 577, 579 (June 15, 2001) (“A fair reading of the statute as a whole would

suggest, therefore, that the [adjustment of status] portability provision was

included in § 106 to allow sponsored workers to progress in their careers

despite unreasonable administrative agency delays.”).

However, section 204(j) of the Act required aliens to be in the same or

similar occupation in order for a visa petition to remain valid. The INS deemed

this to be necessary in order to avoid a recertification of the alien’s labor

certification by the DOL and clearly considered the “same or similar”

determination to be within its realm of authority. See Memorandum from

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Michael D. Cronin, Acting Executive Associate Commissioner, Office of

Programs, to Michael A. Pearson, Executive Associate Commissioner, Office

of Field Operations (June 19, 2001), reprinted in 78 Interpreter Releases,

No. 25, July 2, 2001, at 1069, 1071, & app. II at 1108, 1115. To make this

determination, INS officials were directed to obtain a letter of employment

from the new employer that contained the new job title, job description, and

salary, as well as to consult the Department of Labor’s Dictionary of

Occupational Titles or its online O*NET classification system or similar

publications.4 Id. app. II at 1115. This would also allow the INS (now the DHS)

to determine whether the alien was inadmissible under the public charge ground

of inadmissibility pursuant to section 212(a)(4) of the Act, 8 U.S.C.

§ 1182(a)(4) (2000), and was therefore ineligible for adjustment of status.5 Id.;

see also section 245 of the Act, 8 U.S.C. § 1255 (2000).

We note that the process of determining whether the alien’s new job is in the

“same or similar” classification is tied to the original requirement for labor

certification by the DOL. The labor certification process involves an analysis

to determine whether there are sufficient workers available who are willing to

accept the job in question and whether the alien’s employment will adversely

affect the wages and working conditions of United States workers. See Pesikoff

v. Sec’y of Labor, 501 F.2d 757 (D.C. Cir. 1974); Ira J. Kurzban, Immigration

Law Sourcebook 715 (9th ed. 2004).6 Although domestic economic policy may

be related to issues involving immigration, it is not within the Immigration

Judges’ realm of expertise to make determinations regarding such matters.

Furthermore, the process of obtaining adjustment of status based on an

employment-based visa petition involves a “delicate interaction” between the

DOL and immigration authorities. See Medellin v. Bustos, 854 F.2d 795, 797

(5th Cir. 1988). After the DOL determines that the American labor market will

4

See Paparelli & Lee, supra, at 581 (arguing that in order to reduce further administrative

delays when an alien changes jobs, the best approach for implementing section 204(j) would

be to allow the alien to obtain an advisory opinion from the INS (now the DHS) without

requiring a formal adjudication in every case).

5

The Cronin memorandum stated that the INS was formulating proposed regulations to

establish a policy framework in which to adjudicate benefits under section 106(c) of the

AC21 and that, until these were established, adjudicators should consult on a case-by-case

basis with Headquarters before denying cases on the ground that a new job was not in the

same or similar classification. 78 Interpreter Releases, supra, at 1115.

6

We note that the DOL has recently proposed a different approach to the labor certification

process known as Program Electronic Review Management (“PERM”), which is designed

to eliminate the backlog involved in certifying employment. See Kurzban, supra, at 716-17;

Gary Endelman, The Lawyer’s Guide to § 212(a)(5)(A): Labor Certification from 1952

to PERM: Part I, 81 Interpreter Releases, No. 38, Oct. 4, 2004, at 1353. Neither party has

raised this as a potential issue that would affect this case. In any event, in light of the

reasoning in our decision, we would again find that the Immigration Judges have no authority

to assess visa petition eligibility, even under the new standards proposed.

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not be adversely affected by the alien’s employment, the various immigration

agencies, i.e., the DHS, the Immigration Courts, and the Board, decide whether

an alien should be granted adjustment of status. For the reasons stated above,

it is clear that only DHS has the authority to approve a visa petition in this

process. Once the visa petition is approved, the Immigration Judges have

jurisdiction over the application for adjustment of status. However, without

approval of the visa petition or a determination that one already approved

remains valid following an alien’s change in employment, the Immigration

Judges have no authority to adjudicate an application for relief.7 Accordingly,

we find no merit to the respondent’s assertion that the Immigration Judge has

jurisdiction to apply section 204(j) of the Act and to grant his adjustment

application.

IV. VOLUNTARY DEPARTURE

With regard to voluntary departure, the respondent also argues that a remand

is inappropriate because the DHS deliberately withheld documents pertinent to

his eligibility for relief so that he could not prepare to support his application.

However, the transcript pages to which the respondent cites do not address his

eligibility for voluntary departure. They pertain instead to the DHS’s belief that

the respondent is ineligible for adjustment of status because he is a persecutor.

The Immigration Judge declined to address this issue because he found that he

lacked jurisdiction over the adjustment of status application as a whole.

Therefore, we find no error in our previous decision to remand for a further

determination on the respondent’s statutory eligibility for voluntary departure,

a subject which was not addressed by the Immigration Judge.

V. CONCLUSION

In our prior decision, we found no error in the Immigration Judge’s

determination that he lacked jurisdiction to apply section 204(j) of the Act in

this case. We are not persuaded by the respondent’s assertions that our

conclusion in that regard was incorrect. We are also unconvinced that our

remand for further proceedings on the issue of voluntary departure was

inappropriate. Accordingly, the respondent’s motion to reconsider will be

denied.

7

We note that the overall policy of the AC21 is to ensure that skilled workers who are

necessary to the American work force are granted the right to remain here if they meet the

requirements set forth by the DOL and the Immigration and Nationality Act. Inasmuch as

the DOL has clearly indicated its approval of the respondent’s employment, and the

respondent has asserted that he remains eligible for labor certification through his new

employment, it is incumbent upon the DHS to determine whether the respondent’s visa

petition remains valid pursuant to section 204(j) of the Act.

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ORDER: The respondent’s motion to reconsider is denied.

FURTHER ORDER: The record is remanded to the Immigration Court

for further proceedings consistent with this opinion, and for the entry of a new

decision.

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