INA §204(j) Allows Aliens to Adjudicate Adjustment of Status while in Removal Proceedings

INA §204(j) Allows Aliens to Adjudicate Adjustment of Status while in Removal Proceedings
by Ken C. Gauvey

Section 204(j) of the Immigration and Nationality Act provides relief for aliens who change jobs after their employment-based visa petition has been approved. 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.

In other words, aliens who have an approved employment based visa1, and switched jobs to a position that is the same or similar occupational classification for which the petition was filed, possesses a valid visa for purposes of filing for an adjustment of status.

So, for example, assume an alien who is in removal proceedings gets a valid visa through their employer during proceedings. However, by the time they get back to immigration court, they has been terminated and have found new employment doing the same job at another company. That alien's visa is still valid under 204(j) and the alien may file to adjust status in immigration court or may request to have proceedings administratively closed in order to adjust status through USCIS. This is the situation that occurred in Perez-Vargas v. Gonzales2, 34 Immig. Rptr. A2-330 (4th Cir. February 22, 2007).

In Perez-Vargas, the immigration judge held that the court lacked jurisdiction to determine whether Perez-Vargas's visa was still valid pursuant to §204(j) and so found Perez- Vargas removable. The Board of Immigration Appeals ("BIA") upheld the immigration judge's ruling. The Fourth Circuit, however, disagreed. The Court stated that the immigration judge had "exclusive jurisdiction to adjudicate an application for adjustment of status" in removal proceedings.3 Therefore, to hold that the immigration judge lacked the authority to determine the continuing validity of the visa would deny the benefit of INA §204(j) to any aliens in removal proceedings.4

The lesson to employers here is that an employee with an H-1B, EB-1, EB-2 or EB-3 visa may switch positions as long as they take a substantially similar position with another company and they have filed an application for adjustment of status that has been pending for more than 180 days. This applies even if the alien is in removal proceedings.

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INA §204(j) Allows Aliens to Adjudicate Adjustment of Status while in Removal Proceedingsby Ken C. Gauvey

INA §204(j) Allows Aliens to Adjudicate Adjustment of Status while in Removal Proceedings
by Ken C. Gauvey