Court Holds That Adjustment Applicants Can Exercise Job Portability in Removal Proceedings
On February 22, 2007, in Perez-Vargas v. Gonzales, the U.S. Court of Appeals for the Fourth Circuit ruled that applicants with pending adjustment of status applications can exercise job portability while in removal proceedings.
Section 204(j) of the Immigration and Nationality Act allows those with adjustment of status applications pending for more than 180 days to continue with the permanent resident status process despite changing jobs or employers, provided the new job is in an occupational classification that is the same as, or similar to, the one sponsored by the original employer. In Perez-Vargas, the Fourth Circuit disagreed with the Board of Immigration Appeals’ conclusion that an immigration judge lacked jurisdiction to make such a portability determination under section 204(j). The court agreed with the petitioner that the BIA misapprehended the question by distinguishing jurisdiction to adjudicate an application for adjustment of status from jurisdiction to make a section 204(j) determination. Among other things, the court reasoned that the BIA’s interpretation would effectively negate the beneficial impact of section 204(j) with respect to noncitizens in removal proceedings, an interpretation that runs contrary to the plain language of the statute.