The  Immigration and Nationality Act (“INA”), codified in Title 8 of the U.S. Code and its accompanying regulations, sets forth a three-step process by which an alien living in the U.S. may become a permanent resident based on an employment opportunity.  First, the employer seeking to hire the alien must apply to the Department of Labor for certification that the issuance of an employment-based visa and admission of the alien worker to the U.S. will not have an adverse effect on the U.S. workforce.  If the Department of Labor grants the certification, the employer may then file a petition to have the alien worker classified according to one of several preference categories, such as aliens who are skilled workers.  The employer files this petition by submitting a Form I-140 Immigrant Petition for Alien Worker The alien is considered the “beneficiary” of the I-140 petition.

 

The third step is for the employee beneficiary to file an application to adjust his or her status to become a lawful permanent resident.  This application is filed on a Form I-485, Application to Register Permanent Residence of Adjust Status.  An approved I-140 is the prerequisite to the approval of an I-485 application.  The spouse of an employee beneficiary may also file an I-485 application based on the marital relationship.

 

In 2000, Congress passed the American Competitiveness in the Twenty-First Century Act of 2000, Pub. L. No. 106-313, 114 Stat. 1251 (“AC21”).  Section 106(c) of AC21 provides that an I-140 petition “for an individual whose application for adjustment of status pursuant to INA §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 similar classification as the job for which the petition was filed.”  This provision, known generally as the “portability provision,” was designed to provide job flexibility to applicants whose visas had been approved but whose applications for adjustment of status were not adjudicated in a timely fashion.  When AC21 went into effect, a beneficiary of an I-140 petition could file an I-485 and if the I-485 was not adjudicated in 180 days, he or she could switch to another job in the same field without fear that the application would be denied due to lack of an approved visa petition for the new employer.  This is known as “porting.”

 

The specific mandate of AC21 was to grant “job flexibility” to long-delayed adjustment of status applicants.  Such flexibility consists of the beneficiary’s ability to depart, or not to take up, a position described in the I-140 and, if necessary, to leave the employment of and/or abandon the intention to be employed by the I-140 petitioner.  AC21 thus acts as a corrective to the situation faced by adjustment applicants in the past:  such persons were required to make themselves available to take up the employment described in the I-140 petition with the original petitioner at the time the I-485 was approved.  A failure to do so, for whatever reason, could result in the revocation of the I-140 and the I-485 approval.  The lengthy processing times involved in I-485 adjudications, often involving periods of several years, meant that such applicants were effectively forced into a protracted period of indentured servitude, during which upward or lateral professional mobility had to be deferred for fear of prejudicing the residency process.

 

The practical effects of portability were twofold:  First, it turned beneficiaries into “free-agents” after the tolling of the 180th day of their I-485, permitting them to seek and obtain new employment in their field if they desired.  Second, it turned beneficiaries into self-petitioners in that if a beneficiary exercised portability the original petitioners were out of the picture and no longer remained a necessary component to an alien’s ability to become a resident..

 

Although Congress enacted AC21 eleven years ago, DHS has failed to issue implementing regulations governing portability determinations of I-140 petitions under this provision.  As a result of this significant delay in establishing formal regulations, aliens such as the Plaintiffs who have employment-based applications for adjustment of status lack any formal procedure to notify USCIS that they are “porting” their offer of employment or that their new employment satisfies the portability provisions of 8 U.S.C. 1154(j).  This has meant that since the enactment of AC21, all beneficiaries have had to rely in informal guidance issued by USCIS.

 

This informal guidance began on June 19, 2001, when USCIS issued a policy memorandum outlining procedures for processing visa petitions based on the changes imposed by AC21.   The policy memorandum explained that the adjudicators should not deny applications for adjustment of status on the basis that the alien has changed jobs.  See id. §F(1).  The memorandum stated that when the applicant no longer intends be employed by the employer who sponsored the visa petition, USCIS should request a letter of employment from the new employer to determine whether the new job is in the same or similar occupation.  Id.

 

On August 4, 2003, USCIS issued another guidance memorandum addressing the requirements of the AC21 Portability Provision.  The memorandum explained that the guidance from the June 2001 policy memorandum was still in effect, explaining that if the approval of the I-140 is revoked or the Form I-140 is withdrawn before the alien’s I-485 has been pending 180 days, the approved Form I-140 is no longer valid with respect to a new offer of employment and the I-485 may be denied.  The memo went on to that that if at any time the USCIS revokes approval of the Form I-140 based on fraud, the alien will not be eligible for the job flexibility provisions of §106(c) of AC21 and the adjudicating officer may, in his or her discretion, deny the attached Form I-485 immediately.  It also explained that if the form I-140 has been approved and the Form I-485 has been filed and remained unadjudicated for 180 days or more (as measured from the I-485 receipt date), the approved Form I-140 will remain valid even if the alien changes jobs or employers as long as the new offer of employment is in the same or similar occupation.  The memorandum further stated that there is no requirement in the statute or regulations that a beneficiary of a Form I-140 actually be in the underlying employment until permanent residency is authorized.  Therefore it is possible for an alien to qualify for the provisions of AC21 even if he or she has never been employed by the prior petitioning employer.

 

On May 12, 2005, USCIS issued another guidance memorandum addressing the processing of I-140 petitions and I-485 applications.  This guidance memorandum presented a series of questions and answers involving issues that may be faced by adjudicators, including the following:

Question 8:     Can an alien port to self-employment:

Answer:          Yes, as long as the requirements are met.

Question 11:  When is an I-140 no longer valid for porting purposes?

Answer:          An I-140 is no longer valid for porting purposes when:

A.  an I-140 is withdrawn before the alien’s I-485 has been pending for more than 180 days, or

B.  An I-140 is denied or revoked at any time except when it is  revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.

One aspect of portability that the policy guidance memos addressed in their interpretation of the “new employers” was that adjustment of status applicants can encompass self-employment situations.  In other words, it is permissible, according to the memos, for such an applicant to “port” to self-employment and preserve AC21 benefits.   USCIS places definite limitations on the exercise of AC21 benefits in this situation.  Three conditions are required:  (1) as with all adjustment portability situations, the job in which the applicant employs himself or herself must be in the same or similar occupational classification as the job described in the I-140; (2) USCIS must confirm the legitimacy of the new self-employer and the job offer; and (3) USCIS must be satisfied that the employment opportunity described in the I-140 was a true reflection of the petitioner’s and beneficiary’s intentions at the time the I-140 and I-485 were filed, meaning that the petitioner must have had the intent to employ the beneficiary and the beneficiary must have had the intent to work for the petitioner upon adjustment.  This third condition for successful adjustment portability to self-employment was obviously designed to act as a safeguard against the abuse of the immigration process by entities that file petitions based on frivolous offers of employment in order to exploit the safe harbor offered by AC21.  However, the memos caution USCIS officers not to be overly aggressive in attempting to uncover fraud, that they “should not presume absence of such intent but in appropriate cases additional evidence or investigation may be appropriate.”   This somewhat generous approach which could be construed to place petitioners and beneficiaries on an honor system is consistent with the generally liberal tone of the memos.