USCIS’ New Guidance On Job Portability attempts to shed some light on the process of adjusting citizen status based on employment.

In October of 2000, section 204(j) of the Immigration and Nationality Act (“INA”) was enacted as part of the American Competitiveness in the 21st Century Act (“AC 21”). At the time it was a provision believed to be on the cutting edge – and in response to “long delays.”  The long delays at the time that spurred such creativity lasted as long as 180 days or more at times.  In passing 204(j), the express purpose was to provide job flexibility to foreign national workers experiencing such unusual delays.

To be clear, the exact language of INA 204(j) is:

A petition under subsection (a)(1)(D) (redesignated as (a)(1)(F)) 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.

Oh, how so many foreign national workers wished that 180 days was now considered long, as many times the process is literally many, many years in duration – if not decades, but I digress.

I for one am a fan of INA 204(j) and the flexibility, although limited, it provides foreign workers who dedicate their lives to improving our nation.  It is an important part of immigration law, that serves a good purpose. However, I am also a fan of the Administrative Procedure Act (“APA”), which is designed to govern the way in which federal administrative agencies propose and establish regulations, and allows for federal court review of agency decisions. The APA is intricate, and admittedly, a pain to follow – but it is what provides checks and balances to federal agencies, and provides transparency to the way our federal agencies are operated (or at least it is supposed to).

Although the APA is one of the most important pieces of law governing federal agencies, apparently United States Citizenship and Immigration Services (“USCIS”) considers it more of a recommendation than a requirement. This is highlighted by USCIS’s recent release of its new proposed guidance memo related to job portability under INA 204(j).  Once the memo is finalized, it is supposed to bring clarity to foreign workers, and comfort in using the portability provision of INA 204(j) – something many workers are simply scarred to use. I’m a fan of such action, but why is it coming through guidance memos subject to arbitrary cancellation?  Why not promulgate regulations that have the force of law – the very purpose of the APA?

Please, don’t get me wrong. Any clarity that USCIS can provide to those that can benefit from INA 204(j) is greatly appreciated. However, how can clarity be achieved when it is subject to arbitrary cancellation? For instance, the newly proposed guidance states that all prior memos are superseded relating to whether two positions under INA 204(j) are in the same or similar occupational classification. But, the newly proposed guidance memo “does not address other procedural requirements of the 204(j) portability determination.”  In turn, the Memo of Michael Aytes dated December 27, 2005 on AC 21, does provide useful guidance related to INA 204(j), but has it been superseded by the new proposed guidance memo because it provides some guidance that has now been superseded – or only partly superseded – or not superseded at all in the end? All such confusion could, and should, be avoided by adherence to the APA.

 

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding USCIS’ New Guidance On Job Portability, or other immigration matters , please feel free to contact Matthew L. White at  480.461.5304,  log on to udallshumway.com,  or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.