USCIS Issues Two Precedent Appeals Decisions

U.S. Citizenship and Immigration Services has recently issued two decisions by the Administrative Appeals Office (AAO) as binding precedents for the agency.

This means that the US CIS must follow these decisions in deciding future cases. In the first decision, the AAO held that an employee may not "port" or transfer to a new employer and still adjust status to permanent residence, unless the I-140 employment-based immigrant visa petition upon which the transfer was made was "valid." In the second decision, the AAO clarified that employment by an "American firm or corporation" for purposes of preserving residence for naturalization purposes can include publicly traded companies, as long as the company is both incorporated and trades its stock exclusively on U.S. stock markets.

The first decision, Matter of Al Wazzan, 25 I&N Dec. 359 (AAO 2010), held that an employee may not "port" or transfer to a new employer and adjust status, unless the original I-140 immigrant visa petition on which the porting is based was "valid," even if the adjustment of status application was pending for at least 180 days. The validity of the petition is important because section 204(j) of the Immigration and Nationality Act provides that, for purposes of adjusting status to permanent residence, the original I-140 petition "shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification s the job for which the original petition was filed" and 180 days have passed since the filing of the adjustment of status application. The AAO makes clear that it is not the passage of 180 days that makes a petition valid. Rather, according to the AAO, a petition is not "valid" for purposes of porting unless the alien was also entitled to the requested classification and the petition was approved by CIS. For a copy of this decision, please click here.

The second decision, Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), concerned the appeal of a denial of an application to preserve residence for naturalization purposes and clarified that the employees of large, publicly traded companies who were temporarily stationed overseas by that company could still qualify to preserve residence for naturalization purposes without proving the citizenship of the individual stockholders owning more than 51% of the company. This ruling is important because, for qualifying employees, it could reduce at least one of the negative consequences of overseas assignments for permanent residents employed by large U.S.-owned companies: extending the time until the individual is eligible to apply for U.S. citizenship. For a copy of this decision, please click here.

Categories: Immigration Blog