In Matter of Neto, 25 I&N Dec. 169 (BIA 2010)., the BIA Reversed Its Former Decisions and Determined That Immigration Courts Have Jurisdiction to Determine Portability Issues Under INA § 204(j)

In Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), the BIA held that immigration judges lack jurisdiction to determine whether an approved I-140 remains valid under INA § 204(j). Section 204(j) provides that, for purposes of an adjustment application that has been pending for more than 180 days, an approved I-140 visa petition remains valid even if the adjustment applicant changes jobs, so long as the new job is in the same or similar occupational classification. Several courts of appeals rejected the BIA’s holding, and in January 2010, the BIA reversed itself in Matter of Neto, 25 I&N Dec. 169 (BIA 2010).

Section 204(j) of the Immigration and Nationality Act (INA) is the portability rule that allows adjustment of status applicants who have filed their applications for 180 days or more based on an approved I-140 petition to change employer in similar field and jobs and retain their adjustment of status application. 204(j) provides that:

    "...any individual whose application for adjustment of status pursuant to section 1255 of this title 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 the same or similar occupational classification as the job for which the petition was filed.

    The effect of Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005) and INA Section 240(j) is that it allows reliefs for persons who are looking to change jobs while their I-485 adjustment of status applications are pending with USCIS. Such persons can change jobs in similar fields and hold similar positions and still be able to adjust based on their previously approved I-140 petition. Second, if for some reason the USCIS denies the applicant's adjustment of status application and the person is now in removal proceedings, the applicant can now file the adjustment of status application with the immigration court and allows the court to review the applicant's qualifications for adjustment of status.

    For assistance responding to Request for Evidence (RFE) or to appeal an erroneous decision by USCIS or the Immigration Courts regarding portability of approved I-140 petitions for adjustment of status applicants under INA § 240(j), please contact our Houston Immigration Lawyers and our U.S. Immigration attorneys at 713-517-6645.


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