Foreign nationals who are awaiting completion of their employment based green card applications through Adjustment of Status (AOS), may be eligible for adjustment portability. The “American Competitiveness in the Twenty-First Century Act of 2000” (commonly referred to as “AC21”), increases employment flexibility for those who qualify. Foreign nationals who have an employment-based Adjustment of Status (green card) application pending with US Citizenship and Immigration Services (USCIS) may change to a similar position with a different employer, provided they meet certain criteria.
As a general rule, all employment based green card applications are employer, employee, job duty and job location specific. If any one of these factors has a material change, prior to green card issuance, the application is lost. This can result in significant processing delays. Adjustment portability provides for a limited exception to this general rule.
Currently, there are no regulations implementing this new law. USCIS has issued non-binding memorandum, but these can change without prior notice. Accordingly, it is our opinion that adjustment portability should be used cautiously, and only with the assistance of counsel.
The adjustment portability provision of this law requires that the foreign national continue to work in the same or similar field, doing the same or very similar job, even if the company and job location have changed. We require certain documents before an effective evaluation of the risks can be determined in any case.
The individual's Adjustment of Status application must have been pending for at least 6 months, and it is preferred if the underlying I-140 Immigrant Worker Petition has been approved. Clark Hill has observed cases that experienced problems when the I-140 was not approved before Adjustment Portability was utilized. As a result, we strongly prefer that the I-140 be approved to qualify for this option. However, recent non-binding discussions with USCIS confirm that if the I-140 is later revoked by the employer, and not for reasons involving fraud, the foreign national keeps his/her priority date. If the priority date is maintained, the I-140 should continue to be permitted for Adjustment Portability, if the other criteria are met. Our office must review the following information before utilizing this provision for our clients:
- Description of the proposed new position, salary, and work location address.
- Copies of all prior petitions including: the Labor Certification, copy of I-140 Petition and approval, copy of I-485 Adjustment Petition and receipt, Employment Authorization Card. A copy of all prior temporary visa paperwork, including I-94 cards and Visas, are also useful. Applicants who do not have these can file a Freedom of Information Act (FOIA) request with USCIS. Our office can assist with those requests as well. Processing times fluctuate on FOIA requests.
Foreign nationals must remember to maintain valid Advance Parole documents, in order to allow for continued international travel while the adjustment is pending. Any temporary work status (H-1B, L-1, etc.) will become invalid once a change of employers begins. The same would be true for any dependent family members (spouse and children on an H-4 for example). This is particularly true if the H-4 spouse started working on his/her EAD card.
Note: The new employer and the foreign national should remember that if the rules for adjustment portability change, or if the individual's Adjustment is denied, the employee may not be allowed to continue working. Our assessment involves a determination of a number of different factors.
In 2000, N.M. and her family, permanent residents of the United States, were victims of a terrifying human trafficking scheme in India, in which N.M.’s children were held hostage at gunpoint for three days while N.M. and her husband were forced to bring three teenagers to the U.S. and to pass them off as their own children. Many years later, through a combination of poor counsel and miscommunication with U.S. immigration authorities, N.M. was forced to surrender her permanent residence, and was subject to a 20-year bar from returning to the United States.
Today, N.M.’s son is a physician and a U.S. citizen. N.M. requires a lung transplant that she cannot obtain in India. Jennifer Cook, Lindsey Medina, and Thomas Ragland successfully argued that the U.S. Department of Homeland Security should approve N.M.’s application for Humanitarian Parole, which permits otherwise “inadmissible” foreign nationals to enter the U.S. for compelling humanitarian reasons. Last week, shortly after obtaining this very difficult to receive approval, N.M. flew to the U.S. and is currently preparing for her lung transplant surgery and recovery under the care of her son and extended family.
Following a denial of a request for an H-2A farm labor visa application, and denial of an administrative appeal, Maria Dwyer, Thomas Ragland and Patrick Taurel initiated a federal lawsuit seeking to enjoin the Department of Labor (DOL) from refusing to acknowledge the different farming operations of two large farming client companies. The two companies have nearly 100 acres of greenhouse crops which faced devastation without the benefit of the foreign farm labor program. The DOL took the position that because the two companies shared one parent, they were not separate companies (even though the companies submitted evidence supporting their distinct operations) and their combined hot house growing operations disqualified them from the program because they were not “seasonal.” After several months of litigation, the DOL agreed to a settlement which includes separate H-2A certifications for each company, time to align the growing seasons, allows for a 10 month growing season for each entity, and more workers than originally requested. Most importantly, the DOL will hand-hold the clients’ filings through 2018 to ensure compliance with the agreement.
Represented employers before Homeland Security Investigations and the Department of Justice Office of Chief Administrative Hearing Officer (OCAHO) on employment eligibility and verification (Form I-9) compliance matters, including complaints and administrative hearings before OCAHO.
Represented individuals and employers before USCIS in employment-based and immigrant investor petitions, including H, L, O, TN, E2, EB1, EB2, PERM, Schedule A I-140 Petitions, and J1 Waivers before the U.S. Department of State, and in related responses to requests for evidence, notices of intent to deny or revoke petitions, and Department of Labor audits.
Represented individuals in immigration proceedings before USCIS and in immigration courts, including family-based petitions, 601A provisional waiver applications, naturalization, affirmative and defensive asylum, VAWA protection, U visas, T visas, cancellation of removal, and in related responses to requests for evidence, and notices of intent to deny or revoke petitions.
Represented individuals and employers in federal courts (including U.S. District Court, U.S. Courts of Appeals, and the U.S. Supreme Court) on appeal, and in Mandamus and Administrative Procedure Act Complaints regarding agency denials and delays of applications and petitions, including adjustment of status, naturalization, and employment-based visa petitions.
Last October, Thomas Ragland and Patrick Taurel filed a mandamus complaint in US District Court for the District of Columbia on behalf of a client, asking the court to compel U.S. Citizenship and Immigration Services (USCIS) to adjudicate the client’s Form I-526 EB-5 immigrant investor petition without further delay. The petition had been pending for over 25 months at that point, without explanation. In response to the lawsuit, the client received a surprise site visit by officers from the USCIS Beijing office, who requested that he produce extensive financial and other documentation within 3 days’ time. Thomas and Patrick worked out an agreement with the Assistant U.S. Attorney who was assigned to the case for additional time to respond to the Request for Evidence (RFE) in exchange for consent to an extension of the government’s response deadline. The client timely filed an extensive response to the RFE. In response, USCIS issued a Notice of Intent to Deny (NOID) and gave the client 33 days to respond. The client filed a timely NOID response, and the AUSA then requested another 60 days for the agency to make a decision. Thomas and Patrick objected, and the court agreed and granted only a 30-day extension. Finally, two days before the government’s deadline to respond to the mandamus complaint, the AUSA contacted Thomas and Patrick with the happy news that USCIS has approved the client’s I-526 petition. A successful outcome to the litigation and a very happy client.
Independent Hospitalist Physicians PLLC v. Rodriguez, No. 14-cv-1978 (D.D.C. Dec. 7, 2014) – APA complaint and Motion for Preliminary Injunction challenging denial of H-1B visa for foreign physician who was granted a 212(e) waiver to work in medically underserved area. Two weeks after filing lawsuit, U.S. Citizenship and Immigration Services (USCIS) reopened case, reversed its prior decision, and granted H-1B visa.
Malilia v. Holder, 632 F.3d 598 (9th Cir. 2011) – Held: Immigration Judge abused his discretion by denying noncitizen’s request for a continuance based on pending I-130 visa petition filed by his U.S. citizen wife. Remanded to Immigration Court to allow client to apply for adjustment of status to lawful permanent resident, based on approved I-130 petition and despite federal firearms conviction under 18 U.S.C. § 922(e).
Shrestha v. Holder, No. 10-73627 (9th Cir. Oct. 21, 2011) (with Maxine Bayley) – Court ordered case remanded to Board of Immigration Appeals (BIA) to provide client an opportunity to challenge prior asylum denial on the merits and for entry of a new decision. BIA had erroneously dismissed client’s appeal as untimely, incorrectly holding that it lacked jurisdiction to review late-filed appeal. Successful challenge to Matter of Liadov, 23 I&N Dec. 990 (BIA 2006).
Waheed v. Holder, No. 11-1095 (4th Cir.) (argued Sept. 21, 2011) – Whether noncitizen’s Maryland conviction for simple misdemeanor assault qualifies as a “crime involving moral turpitude” under Step Three of Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). Companion case to Prudencio v. Holder, 669F.3d 472 (4th Cir. 2012) (rejecting Silva-Trevino as not entitled to Chevron deference because statutory language “convicted of crime involving moral turpitude” is plain and unambiguous). Succeeded in obtaining client’s release from ICE custody, vacating removal order, and reinstating client’s lawful permanent resident status.
Akinsade v. Holder, 678F.3d138 (2nd Cir. 2012) – Held: Noncitizen’s conviction for embezzlement by bank employee in violation of 18 U.S.C. § 656 does not qualify as an aggravated felony “offense involving fraud or deceit” under INA § 101(a)(43)(M)(i). Order of removal vacated, removal proceedings terminated.
United States v. Akinsade, No. 686 F.3d 248 (4th Cir. 2012) – Held: District Court denial of writ of error coram nobis reversed, Appellant granted coram nobis relief and conviction vacated. Successfully challenged district court’s ruling that a trail court’s general warning during Rule 11 plea hearing concerning potential immigration consequences was sufficient to cure the prejudice caused by attorney’s affirmative misadvice under “prong two” of the test articulated in Strickland v. Washington, 466 U.S. 688 (1984).
Udugampola v. Jacobs, No. 14-5286 (D.C. Cir. filed Dec. 22, 2014; dismissed Aug.18, 2015) – Appeal of district court decision dismissing complaint under doctrine of consular nonreviewability. Underlying challenge to denial of immigrant visa petition by U.S. Consulate under INA §212(a)(3)(E)(iii)(II) for alleged participation in extrajudicial killings. Dismissed following Supreme Court opinion in Kerry v. Din, 135 S. Ct. 2128 (2015).
Sanchez v. Holder, No. 15-1140 (4th Cir. filed Feb. 10, 2015) – Petition for review of Board of Immigration Appeals decision denying asylum, withholding of removal, and relief under the Convention Against Torture to Honduran national who alleges persecution on account of membership in a particular social group.
Matter of T-B- (Arlington, VA Imm. Ct. 2008) – adjustment of status granted, removal proceedings terminated; successfully argued that client failed to maintain lawful R-1 nonimmigrant status through “no fault of his own” under INA § 245(k).
Matter of A-B- (Chicago, IL Imm. Ct. 2009) – removal proceedings terminated; successfully argued that client not subject to reinstatement of removal for unlawful reentry following entry of expedited removal order under INA § 235.
Matter of I-S- (Arlington, VA Imm. Ct. 2009) – employment-based adjustment of status granted under portability provision of INA § 204(j) for self-employed Russian entrepreneur in “same or similar” occupational classification.
Matter of M-S- (Baltimore, MD Imm. Ct. 2007) – deferral of removal under Convention Against Torture granted to Iranian student convicted of controlled substance offense.
Matter of K-P- (New York NY Imm. Ct. 2010) – asylum granted to Nepali teacher based on well-founded fear of persecution by Maoist rebels.
Matter of R-G- (Arlington, VA Imm. Ct. 2012) – removal proceedings terminated; successfully argued that client’s Virginia conviction for assault and battery neither a crime involving moral turpitude (CIMT) nor a domestic violence offense.
Matter of D-P- (Arlington, VA Imm. Ct. 2012) – cancellation of removal under INA §240A(a) granted, removal proceedings terminated. Client granted relief despite series of criminal offenses over 3-year period.
Matter of Y-K- (Arlington, VA Imm. Ct. 2012) – cancellation of removal under INA §240A(a) granted, removal proceedings terminated. Prior to merits hearing, convinced court to conduct bond hearing and release client from mandatory detention under INA §236(c), successfully arguing that 58 days was overly lengthy period of pre-hearing custody.
Matter of A-K- (Arlington, VA Imm. Ct. 2007) (with Michael Maggio) – asylum granted to Russian businessman based on well-founded fear of persecution on account of political opinion and membership in particular social group.
Matter of A-D- (Arlington, VA Imm. Ct. 2006) (with Thomas Elliot) – waiver under INA § 209(c) and readjustment of status granted to Pakistani student convicted of aggravated felony offense.
Matter of L-M- & S-S- (Arlington, VA Imm. Ct. 2012) – removal proceedings terminated. Overcame DHS charge of fraudulent asylum claim, and thus invalid lawful permanent resident status, because government failed to prove deportability by clear, unequivocal, and convincing evidence.
Matter of P-M- (Arlington, VA Imm. Ct. 2012) – removal proceedings terminated; successfully argued that client’s Virginia conviction for attempted sexual battery not a crime involving moral turpitude.
Matter of P-M- (BIA 2011) – DHS appeal dismissed; successfully argued that client’s Virginia conviction for attempted sexual battery not an aggravated felony under categorical approach.
United States v. Mott Thoroughbred Stables, Inc., OCAHO Case No. 14A00004 (OCAHO Sept. 26, 2014) – successfully challenged ICE employer sanction complaint and imposition of fine for I-9 violations; OCAHO judge reduced fine by over 50%.
Matter of Abdul Hamid (BIA 2014; Atlanta, GA Imm. Ct. 2014) – successfully challenged IJ finding that respondent barred from adjustment of status under INA §212(a)(3)(B) owing to material support for terrorist activities. Client granted permanent resident status, removal proceedings terminated.
Trinity Health-Michigan v. Chertoff, et al., No. 07-cv-2020-PLF (D.D.C. Dec. 26, 2007) – Mandamus complaint and Motion for Preliminary Injunction to compel USCIS to adjudicate delayed H-1B application for nonimmigrant worker under Premium Processing Program. H-1B visa issued to client, a prominent orthopedic surgeon, 13 days after filing of lawsuit.
Poliakova v. Gonzales, et al., No. 08-cv-20143 (S.D. Fla. May 5, 2008), appeal filed, No. 08-13313 (11th Cir.) – Mandamus action challenging unreasonable delay in adjudicating I-485 application for adjustment of status. Case successfully resolved for client while pending before U.S. Court of Appeals for the Eleventh Circuit when USCIS granted long-delayed I-485 and issued green card.
Graitson v. Caterisano, et al., No. 09-cv-850 (D. Md. July 7, 2009) – Petition for Review of Application for Naturalization under 8 U.S.C. 1447(b). Case succeeded in forcing USCIS to adjudicate long-delayed N-400 naturalization application. N-400 approved, client sworn in as U.S. citizen.
Mohammad v. Napolitano, et al., No. 09-cv-1783-EGS (D.D.C. May 17, 2010)– APA complaint challenging revocation of EB-1 Outstanding Professor/Researcher immigrant visa. Subsequent to litigation, client’s EB-1 immigrant visa (green card) successfully reinstated.
Adam v. Mayorkas, et al., No. 10-cv-1691 (D.D.C. Mar. 5, 2011) – mandamus action challenging unreasonable delay in adjudicating application for asylee adjustment of status, due to case being placed on hold under INA § 212(a)(3)(B) due to alleged “material support for terrorism.” Case succeeded in forcing USCIS to remove hold, grant I-485, and issue green card to client.
Escalona Amador, et al. v. Meeker, et al., No. 11-cv-1977-JDW-AEP (M.D. Fla. Sept. 28, 2011) – APA complaint and Motion for Preliminary Injunction challenging denial of adjustment of status under Diversity Visa program. Convinced district court to assume jurisdiction over case despite jurisdiction-stripping provisions of 8 U.S.C. § 1252(a)(2)(B).
Udugampola et al. v. Jacobs, et al., No. 09-cv-01321-BAH (D.D.C. July 8, 2011), appeal filed, No. 11-5215 (D.C. Cir.) – Mandamus action and APA complaint challenging consular immigrant visa denial. Case successfully settled on behalf of clients, appeal before U.S. Court of Appeals for the District of Columbia Circuit voluntarily dismissed.
Cherepanov v. U.S. Department of State, No. 11-cv-1394-CKK (D.D.C. Sept. 4, 2011) – Complaint under the Freedom of Information Act (FOIA) to obtain documents unreasonably withheld by the Department of State. Case successfully settled on behalf of client.
Kiaran McLaughlin Racing Stable, Inc., et al. v. Napolitano, No. 11-cv-4892 (E.D.N.Y. Dec. 1, 2011) – APA complaint and Motion for Preliminary Injunction challenging denial of H-2B temporary worker petitions for thoroughbred horse racing stable attendants. Case successfully settled on behalf of clients.
Darnbrough v. U.S. Department of State, 2013 U.S. Dist. LEXIS 22872 (D.D.C. Feb. 20, 2013) – Complaint under the Freedom of Information Act (FOIA) to obtain documents unreasonably withheld by the Department of State, challenging government’s assertion of exemption under INA §222(f). Held: FOIA exemption cited by Department of State does not cover all documents contained in consular database, government ordered to produce requested documents to Plaintiff. As a prevailing party, Plaintiff recovered attorney fees for cost of litigation.
Abusamhadaneh v. Taylor, 2012 U.S. Dist. LEXIS 78195 (E.D. Va. June 5, 2012) (with Denyse Sabagh) – Held: On Petition for Review of Denial of Naturalization Application under 8 U.S.C. §1421(c), District Court ruled that U.S. Citizenship and Immigration Service (USCIS) erred in denying applicant’s N-400 Application for Naturalization. In 90-page opinion, District Court reversed the agency and granted naturalization, holding that witnesses, and unsustainable because agency officials lacked credibility and failed to follow agency’s own guidance. District Court administered oath ceremony to swear in client as a naturalized U.S. citizen.
Iduma v. United States, No. 13-cv-2995 (D. Md. filed Oct. 10, 2013) – Petition for Writ of Error Coram Nobis seeking to reopen criminal proceedings and vacate past conviction owing to ineffective assistance of counsel and fundamental errors that rendered defendant’s guilty plea not knowing, intentional, and voluntary.
Morones Munoz v. USCIS, No. 14-cv-1838 (M.D. Fla. Filed Nov. 12, 2014) – Petition for Review of Denial of Naturalization Application under INA §1421(c), challenging as legally erroneous USCIS decision denying naturalization based on alleged lack of good moral character. In response to lawsuit, USCIS reopened proceedings and granted naturalization. Client sworn in as U.S. citizen.
Mott Thoroughbred Stables v. Rodriguez (D.D.C. filed Mar. 6, 2015; dismissed June 22, 2015) – APA complaint and Motion for Preliminary Injunction challenging USCIS denial of O-1B extraordinary ability visa to acclaimed thoroughbred horse trainer.
Sidik v. Rodriguez, No. 15-cv-432 (D.D.C. filed Mar. 25, 2015) – mandamus action challenging unreasonable delay in adjudicating application for asylee adjustment of status. Case succeeded in compelling USCIS to schedule new interview, approve I-485 application, and grant client lawful permanent residence.
Pearson v. Rodriguez, No. 15-cv-617 (D.D.C. filed Apr. 23, 2015) – APA complaint challenging denial by USCIS under the Adam Walsh Act of U.S. citizen’s I-130 petition for alien relative filed on behalf of his foreign national spouse.
United States v. Lopez-Collazo, 2015 U.S. Dist. LEXIS 61613 (May 11, 2015)(counsel for defendant: Deborah Boardman, Office of Federal Public Defender) – appeared and testified as expert witness on immigration matters in illegal reentry prosecution under 8 U.S.C. 1326. U.S. District Judge agreed that defendant was prejudiced by government errors in underlying expedited removal proceedings and dismissed illegal reentry charge.
Soliman v. Gonzales, 419 F.3d 296 (4th Cir. 2005) (with Thomas A. Elliot) – Held: Noncitizen’s Virginia conviction for credit card fraud did not qualify as aggravated felony “theft offense” under INA § 101(a)(43)(G). Succeeded in obtaining client’s release from ICE custody, vacating removal order, and reinstating client’s lawful permanent resident status.
Salama v. Holder, No. 10-1460 (4th Cir. Dec. 15, 2010) (with Anjum Gupta) – Applicants sought asylum from Egypt after being targeted for their religious beliefs. Following briefing in Court of Appeals, the Department of Justice moved to remand case because neither BIA nor Immigration Judge considered lead applicant’s religious conversion claim. BIA remanded to Immigration Court for further proceedings and Immigration Judge ultimately granted asylum to entire family.
Morris v. Virginia, No. 10-1498 (filed June 10, 2011), cert. denied, Oct 2, 2011.
Issues presented: Whether Padilla v. Kentucky, 130 S. Ct. 1473 (2010), is retroactively applicable to ineffective assistance of counsel claims raised in collateral review.
Whether Virginia fails to provide the constitutionally required adequate post-conviction remedy where, through a combination of strict time limits on collateral review and in-custody requirements, Petitioner and others similarly situated are precluded from vindicating violations of the right to effective assistance of counsel under Padilla.
Selected by SCOTUSblog as “Petition of the Day” and as a “Petition We’re Watching.”
Bazuaye v. United States, No. 12-425 (filed Oct. 4, 2012), cert denied, Apr. 1, 2013.
Issues presented: Whether pursuant to the procedures followed by the United States Court of Appeals for the Second Circuit, it may dismiss an appeal as without merit, sua sponte and without any briefing or input from the appellant, which violates the Federal Rules of Appellate Procedure and Due Process of Law guaranteed by the Fifth Amendment Due Process Clause of the United States Constitution, and is contrary to the procedures followed by other Courts of Appeals, which hold that such a procedure can only be followed in a case where an appellant seeks to perfect the appeal in forma pauperis.
Whether the Second Circuit’s procedure in this regard, set forth in its opinion inPillay v. INS, 45 F.3d 14, 17 (2d Cir. 1995), conflicts with the procedures outlined in decisions in other Circuits, collected in Stafford v. United States, 208 F.3d 1177, 1179 n.4 (10th Cir. 2000), holding that sua sponte dismissal is inappropriate where the Appellant is represented by private counsel.
Whether the claim that prior appellate counsel was ineffective for failing to raise a 17 day exclusion from speedy trial time claim on direct appeal, which would have resulted in a reversal, is not frivolous.
Whether a motion for rehearing may be referred to an entirely different panel.
Leads the performance of immigration-related due diligence for merger and acquisition projects counseling clients in varying industries and types of deals. Recent engagements range from preliminary to deep due diligence
Leads targeted corporate compliance audits of I-9 processes and procedures as well as visa-specific retention policies for corporate clients throughout the United States including: pre and post audit compliance training; new or revised policy implementation; and on-going compliance counseling
Lead immigration counsel for a nationwide Fortune 500 hospital management company with more than 300 facilities
Represents corporate clients in all types of nonimmigrant and immigrant visa applications and petitions, providing extensive planning and guidance throughout the immigration process
Represents foreign nationals with demonstrated national or international acclaim for designation as persons of extraordinary ability for both nonimmigrant status and permanent residence in the United States including actors, models, music groups and musicians, artists, entertainers and corporate leaders.