IJ's Jurisdiction to Apply INA § 204(j)
ARCHIVED ISSUE PAGE (LAST UPDATED JANUARY 2010)
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).
BIA Overturns Matter of Perez-Vargas
The BIA agreed with LAC amicus arguments and issued a precedent decision in Matter of Neto, 25 I&N Dec. 169 (BIA 2010), overturning its prior decision in Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005). In Perez Vargas, the BIA had held that IJs lack jurisdiction to make a finding that a visa is 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 petition remains valid even if the applicant changes jobs, so long as the new job is in the same or similar occupational classification. The BIA reversed itself in Neto, and held that an immigration judge has the authority to decide whether an approved visa petition - issued for one job - remains valid when the individual changes jobs. Without a valid visa petition, the individual would not be eligible for permanent residence.
DHS Agrees with AILF; Urges BIA to Vacate Perez-Vargas
DHS has filed a brief with the BIA in Matter of Neto, A095-861-144, in which it reversed its previous litigation position and - adopting the arguments that AILF made in amicus briefs to the courts and the BIA - urged the BIA to vacate Matter of Perez-Vargas, 23 I&N Dec. 829 (BIA 2005). DHS now argues that an immigration judge does have jurisdiction to determine whether a visa petition remains valid for adjustment of status under INA § 204(j) when the applicant has changed jobs.
Prior to DHS’s filing of this brief, the BIA had indicated that it is considering whether to vacate Matter of Perez-Vargas. The BIA had scheduled oral argument in Matter of Neto. In its scheduling order, the BIA directed the parties to address whether the BIA should adopt the Fourth Circuit’s reasoning in Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007), which reversed Matter of Perez-Vargas and found that IJ’s do have jurisdiction to determine the portability of a change of job or employer. Following receipt of the DHS brief, the BIA cancelled the oral argument it had previously scheduled. However, the BIA asked for supplemental briefs to address specific questions involving DHS/USCIS’s jurisdiction over the portability determination and USCIS’s processes for adjudicating I-140 petitions.
Fifth Circuit Joins Fourth and Sixth Circuits, Rejects BIA Decision in Matter of Perez Vargas, and Instead Finds IJ Has Jurisdiction Over § 204(j) Determination
In Sung v. Keisler, 505 F.3d 372 (5th Cir. 2007), the Fifth Circuit held that an IJ has jurisdiction over a § 204(j) determination as part of the adjudication of an adjustment of status application. In so holding, the Fifth Circuit adopted in full the reasoning of the Fourth Circuit in Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007) (see discussion below). The Fifth Circuit granted the Sungs' petition for review and remanded their case for reconsideration of the adjustment application.
Sixth Circuit Follows Fourth Circuit on Perez Vargas, Finding IJ Jurisdiction Over § 204(j) Issue
In Matovski v. Gonzales, 492 F.3d 722 (6th Cir. 2007), the Sixth Circuit rejected the BIA’s precedent decision Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), and held instead that an IJ does have jurisdiction to determine the continuing validity of an approved I-140 under INA § 204(j). In so ruling, the Sixth Circuit joined the Fourth Circuit, which previously vacated the BIA’s precedent decision in Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007) (see below).
The Sixth Circuit reached its decision after finding that, while there was no express authority that barred an IJ from adjudicating the § 204(j) portability determination, there was a regulation that expressly authorized an IJ to adjudicate a renewed adjustment application in removal proceedings. The Court noted that § 204(j) did not exclude removal proceedings from its protections. Moreover, it also noted that § 204(j) included mandatory language that I-140 petitions “shall remain valid” if the portability conditions are met. Considering the language, structure and purpose of § 204(j), the Court concluded that the BIA’s narrow jurisdictional reading eliminated the petitioners’ ability to avail themselves of § 204(j) protection simply because they were in proceedings, and that such a result was contrary to Congress’s intent. The Matovski petitioners were represented by Marshall Hyman.
Matter of Perez Vargas also is being challenged in the Second Circuit case, Ahmad-Mushtaq v. Mukasey, No. 08-4081, in which AILF filed an amicus brief and in the Ninth Circuit case, Smethurst v. Gonzales, No. 06-75-211. Please contact us at firstname.lastname@example.org if your client is challenging Matter of Perez Vargas.
Mandate Issued in Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007)
In February, 2007, the Fourth Circuit vacated Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), and held that IJs have jurisdiction to make findings regarding the validity of an approved I-140 under INA § 204(j). Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007). The government filed a petition for rehearing which was denied by the Court on April 30, 2007. The mandate issued on May 7, 2007, thus concluding the case.
Fourth Circuit Accepts AILF's Arguments and Vacates Matter of Perez Vargas, BIA Precedent on INA § 204(j)
The Fourth Circuit vacated Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), and held that IJs have jurisdiction to make findings regarding the validity of an approved I-140 under INA § 204(j). Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007). Section 204(j) provides that, for purposes of an adjustment application that has been pending for more than 180 days, an approved I-140 petition remains valid even if the applicant changes jobs, so long as the new job is in the same or similar occupational classification. The BIA had held that IJs lack jurisdiction to make a finding that a visa is valid under section 204(j). The Fourth Circuit found that the BIA’s decision conflicted with clear statutory language. Perez Vargas was represented by O’Toole, Rothwell Nassau & Steinbach.
AILF filed an amicus brief in Perez-Vargas, and the court agreed with the arguments AILF made in the brief. Despite the fact that the Fourth Circuit vacated Matter of Perez-Vargas, the BIA takes the position that its decision remains precedent in circuits that have not yet ruled on the issue. However, there are arguments to the contrary. We would advise attorneys to argue that Matter of Perez Vargas has been vacated, and in the alternative, is wrong. Please email us at email@example.com to let us know how the IJs and the BIA are handling these cases following the Fourth Circuit’s decision. AILF is interested in litigating the issue in other circuits.
Background on Matter of Perez Vargas
In Matter of Perez Vargas, 23 I&N Dec. 829 (BIA Oct. 2005), the BIA held that immigration judges, when adjudicating adjustment of status applications, 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.
The respondent in Matter of Perez Vargas was the beneficiary of an approved I-140 visa petition, but he no longer was employed by the petitioning employer at the time of the immigration court hearing. The IJ denied his adjustment application based on his changed employment status, concluding that he lacked jurisdiction to consider whether the previously approved I-140 visa petition continued to be valid for purposes of his adjustment application. The BIA upheld the adjustment denial, reasoning that the authority to apply INA § 204(j) is within the sole jurisdiction of DHS. The BIA reasoned that “[b]ecause 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 is preserved under section 204(j) of the Act after the alien’s change in jobs or employers.”
The BIA's decision improperly ties the “same or similar” occupation classification inquiry to the I-140 visa petition approval. In fact, under INA §204(j), there is a presumption that the approval remains valid and thus the “same or similar” occupation classification inquiry is relevant only to assessing eligibity for adjustment of status. The BIA failed to address (1) the law providing that once an adjustment applicant is in removal proceedings, an IJ has sole jurisdiction over the adjustment application and (2) the fact that CIS will decline to rule on whether § 204(j) applies to an adjustment application when a person is in removal proceedings.
AILF’s Practice Advisory, cited below in Resources, suggests practical and legal strategies that practitioners can employ before the immigration courts and Board and before the circuit courts to challenge the decision
LAC Practice Advisories
How to File a Petition for Review (August 13, 2009)
Court Rules and Documents
Court Rules: Each court provides the local and federal procedural rules. Docket information also is available on the court websites. Some courts post appellate briefs as well.
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