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BIA to Hear Argument on Matter of Perez Vargas

Aug 3, 2009

The Board of Immigration Appeals (BIA) has scheduled oral argument for October 1, 2009 in a case which challenges the precedent decision Matter of Perez-Vargas, 23 I&N Dec. 829 (BIA 2006). In Matter of Perez Vargas, 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. To date, the Fourth, Fifth, and Sixth Circuits -- the only courts to rule on this issue -- have rejected the BIA's holding. The issue is currently pending in a case in the Second Circuit, Ahmad-Mushtaq v. Mukasey, No. 08-4081.

AILA member Kevin R. Leeper represents the respondent in the case before the BIA. The Board has identified the following issues for oral argument:

Whether the Board should adopt the United States Court of Appeals for the Fourth Circuit’s reasoning in Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007), vacating our decision in Matter of Perez-Vargas, 23 I&N Dec. 829 (BIA 2006), and find that Immigration Judges have the authority to determine the portability of a change of job or employer and, therefore, whether the alien retains his or her employment-based visa petition under section 204(j) of the Immigration and Nationality Act.

Whether or not the Board determines that the Immigration Judges have jurisdiction over portability issues under section 204(j) of the Act, under what circumstances should Immigration Judges grant a continuance to allow the Department of Homeland Security (DHS) an opportunity to resolve that question, and alternatively (for the DHS) is the DHS amenable to administrative closure of such cases in lieu of a continuance pending adjudication of the portability issue. The DHS should also describe how portability determinations are adjudicated by its office of Citizenship and Immigration Services and the Appeals process, if any.

AILF has been litigating and helping others to litigate this issue since Matter of Perez-Vargas was published. AILF appeared as amicus curiae in Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007), which rejected the BIA's decision, and is amicus curiae in the pending Second Circuit case, Ahmad-Mushtaq v. Mukasey, No. 08-4081. In addition, AILF issued a Practice Advisory on challenging Matter of Perez-Vargas.

Source: AILA InfoNet Doc. 09080367 (posted Aug. 3, 2009)

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