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Call for Executive Action on Immigration

As the chances of passing an immigration reform bill in Congress grow slimmer, President Obama faces mounting pressure from Democrats and immigrant right advocates to exercise his executive authority.

Senator Chuck Schumer (D-New York) said that Congress only has a few weeks until its August recess to act on immigration reform. Many believe that if immigration reform in Congress is to happen this year, it has to happen within that time frame; otherwise, the President will have to take action on his own.

Since the Senate passed its comprehensive immigration reform bill in June 2013, House Republican leaders refused to take it up on the floor. Although Speaker John Boehner (R-Ohio) indicated last year that immigration reform would be priority legislation for 2014, he now points out that the President’s implementation of the Affordable Care Act gives Republicans more reason not to act on immigration reform. GOP members simply do not trust the President to carry out the law as Congress would pass it.

While House Republican leaders seem to have closed its doors on the prospect of passing a comprehensive immigration reform bill, they also prevented a vote on the proposed legislation referred to as the ENLIST Act that would grant legal status to young undocumented immigrants who serve in the military. Under the bill, the so-called DREAMers would be allowed to join the military and be eligible for citizenship after four years.

Rep. Jeff Dunham (R-California) introduced the bill and sought a vote on the measure by adding it as an amendment to the 2015 National Defense Authorization Act. However, the effort was blocked by House Majority Leader Eric Cantor (R-Virginia).

This recent development intensified the call for executive action on the President. The President’s executive authority allows him to ease deportations. He may, as part of his “prosecutorial discretion”, prioritize deportation of aliens who pose a threat to public safety such as gang members and drug dealers.

At the same time, he could ease up on the deportation of aliens who do not have criminal convictions and who have family members in the U.S. Although they are still subject to deportation, enforcement would not be focused on them.

The President may also grant a certain category of aliens temporary reprieve from deportation allowing them to live in the U.S. and apply for work authorization such as his Deferred Action for Childhood Arrivals (DACA) program.

Many experts agree that the President has the authority to expand DACA. The American Immigration Lawyers Association (AILA) has even recommended expanding the deferred action program to parents, children, spouses and siblings of U.S. citizens, lawful permanent residents and DACA beneficiaries. Republicans, on the other hand, believe that this would violate the separation of powers.

Dan Pfeiffer, White House adviser, said that the President would “use every ounce of his authority” where necessary to advance his agenda on immigration. Enforcement policies are currently under review in order to make enforcement “more humane.”

Although only Congress can provide legal status for the undocumented, the President’s authority can grant temporary reprieve from deportation. If House Republicans refuse to take up immigration reform this summer, the President will have no choice but to take action.

“If the President doesn’t take action,” says Representative Mike Honda (D-California), “there would be political blowback from the immigrant community.”

When Adjustment Applicant Is Allowed to Change Employment

Foreign nationals with pending adjustment of status applications (Form I-485) based on a first preference, second preference, or third preference employment-based immigrant visa petition (EB1, EB2 or EB3) may change jobs or employers subject to certain eligibility requirements.

To be eligible to change or port from one job to another under the portability rule also referred to as the job flexibility provision of the American Competitiveness in the 21st Century Act of 2000 (AC21), the beneficiary’s adjustment of status application must have been pending for 180 days or more and the new job must be in the same or similar occupational classification as the job for which the petition was filed.

Also, the Form I-140, Immigrant Petition for Alien Worker, must have been approved or is approvable when concurrently filed with the adjustment application. There must be a valid job offer and the beneficiary must be eligible for the employment preference classification.

In determining whether the new job is in the same or similar occupational classification as the employment in the initial I-140 petition, the USCIS will compare a number of factors and assess the totality of the circumstances. One of the factors considered is the job duties as indicated in the I-140 petition and the job description of the new employment. Another is the wage associated with each position.

Also considered is the Standard Occupations Classification (SOC) code for the job in the initial I-140 petition and the appropriate SOC code for the new job. The SOC system is used by the Department of Labor to group and classify jobs. Occupations are categorized on the basis of type of worked performed as well as the skills, education, and training required to perform the job.

In analyzing whether the jobs match, the USCIS does not necessarily match any particular order of digits in the SOC codes.

If both the I-140 petition and the I-1485 application remain pending for more than 180 days, the beneficiary is not automatically entitled to port. The USCIS must first determine whether the initial I-140 petition is approvable. If USCIS finds that it is, then it will adjudicate the adjustment of status application to determine whether the new position is in the same or similar occupational classification. The I-140 petition must be approved before portability is granted.

If the I-140 petition is subsequently denied, the beneficiary cannot invoke the portability rule.

The USCIS adopted the decision of the Administrative Appeals Office (AAO) in Matter of Al Wazzan relating to the portability rule as it applies to denied I-140 petitions.

In that case, the applicant insisted that he was entitled to port under AC21 based on his new job offer because his I-485 application had been pending for more than 180 days at the time USCIS denied his application. The I-140 petition filed on his behalf was denied by the USCIS on the ground that the applicant was not entitled to the employment classification sought.

The AAO held that the portability rule cannot apply where the I-140 petition is not valid. A denied I-140 petition cannot be considered valid regardless of whether the petition was adjudicated 180 days or more after the filing of the adjustment of status application.

An I-140 petition is considered valid if filed on behalf of an alien entitled to the employment classification sought. Put simply, the portability rule cannot apply where there was never a valid petition from which to port.

Retaining Priority Date in Multiple I-140 Petitions

Every fiscal year a limited number of immigrant visas are made available for each preference category. If the visa demand for a particular category is excessive and could not be satisfied by the number of visas allotted each year, the category is oversubscribed.

The cut-off date indicated in the visa bulletin released by the Department of State each month is the priority date of the first visa applicant who could not be reached within the limit. A visa number is immediately available to an applicant whose priority date is before the cut-off date.

The cut-off date for a particular category may advance, remain unchanged or even retrogress depending on the visa demand.

The June 2014 Visa Bulletin shows that the third preference employment-based (EB-3) cut-off date for the Philippines is January 1, 2008 while the cut-off date for all other countries except India and China is April 1, 2011. The second preference employment-based (EB-2) preference remains current for all countries except China and India.

A Philippine national, for example, who is waiting under the EB-3 category must have a priority date earlier than January 1, 2008 in order to be allotted a visa number. If his priority date is not yet current and he obtains additional education or experience to qualify under the EB-2 category, an employer may request the USCIS to classify the alien beneficiary under this visa category. Since the EB-2 category for the Philippines is current, a number is immediately available to him.

A new I-140 petition for the alien beneficiary with a DOL approved labor certification is filed to request a new visa classification.

An employer who files a subsequent I-140 petition must make sure that the beneficiary is qualified for the new category and that the initial I-140 petition is not revoked or withdrawn. He must also include a copy of the prior approval notice containing the priority date and the approved labor certification.

Under the law, the alien beneficiary with an approved I-140 petition retains the priority date of the petition when a new I-140 is subsequently filed on his behalf. The new I-140 may be filed by the same employer or a different employer. The priority date is the date the labor certification is filed and if a labor certification is not required, as in the case of Registered Nurses and Physical Therapists, the date the I-140 petition is filed.

Employers may simultaneously file EB-2 and EB-3 I-140 petitions for an alien beneficiary who is eligible under each requested visa category.

If the priority date for the requested visa category is current and the applicant is already in the United States, the I-140 petition may be filed concurrently with the adjustment of status application.

If the subsequent I-140 petition is approved and the applicant has a pending adjustment of status application, the applicant may request the USCIS to transfer the newly approved I-140 petition to his pending I-1485 application. The applicant must make a request in writing. No new form or fee for the adjustment of status application is required.

Changes in Provisional Waiver Adjudication

The provisional unlawful presence waiver is available to the spouse, parents and children of U.S. citizens who are ineligible to adjust status in the U.S. These include individuals who entered the U.S. as crewman or without inspection, and those who entered the U.S. on a K-1 fiance(e) visa but did not marry the U.S. citizen who petitioned them. To be eligible, inadmissibility must be solely based on having accrued unlawful presence in the U.S.

Prior rules required the applicant to apply for an immigrant visa abroad and apply for a waiver after denial of the visa. Waiver adjudication is a long process that can take several months or even years. The provisional waiver process shortens the time U.S. citizens are separated from their families by allowing qualified individuals to apply for the waiver in the U.S. and have it adjudicated before they leave the country for their immigrant visa interview.

In order to qualify, the applicant must be physically present in the U.S. and must at least be 17 years of age at the time of filing. The applicant must also demonstrate that the qualifying U.S. citizen relative will experience “extreme hardship” if the waiver is denied.

Individuals with final orders of exclusion, deportation, or removal as well as those who are currently in removal proceedings that are not administratively closed at the time of filing are ineligible for a provisional unlawful presence waiver. Individuals who have pending application for permanent resident status with the USCIS are also not eligible to apply.

Also, where a USCIS officer finds that there is a reason to believe that the applicant is inadmissible based on grounds other than unlawful presence at the time of his or her immigrant visa interview, the request for provisional waiver will be denied.

For several months after the USCIS started accepting applications on March 4, 2013, there were many reports of provisional waiver application denials. USCIS officers adjudicating requests for I-601A waiver appeared to deny applications where there existed a reasonable suspicion that the applicant might be inadmissible based on other grounds other than unlawful presence.

Request for I-601A waiver of applicants who have prior encounters with the law, for instance, were denied by adjudication officers, regardless of the sentence imposed or whether the offense is a crime involving moral turpitude.

To address this, the USCIS issued a memorandum clarifying that if the applicant’s criminal offense falls within the “petty offense” or “youthful offense” exception under the Immigration and Nationality Act (INA) or is not a crime involving moral turpitude, then the adjudication officer should not find a reason to believe that the applicant is subject to a ground of inadmissibility other than unlawful presence.

In this instance, the USCIS officer should continue to review the applicant’s record to determine whether he meets all the other requirements for provisional waiver and merits the favorable exercise discretion.

The applicant cannot appeal a denial of the provisional waiver application nor can he file a motion to reopen or reconsider the denial. However, he may file a new I-601A waiver application. The filing fee including fee for biometrics is $670. The immigrant visa fee must have been paid prior to the filing of the I-601A waiver.

USCIS will notify the National Visa Center (NVC) when the request for I-601A waiver is filed. NVC will place the case on hold while the waiver application is pending.

When the application is approved, USCIS will inform NVC of the decision which will then schedule the applicant for an immigrant visa interview. The case will be forwarded to the consular post for processing.

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