Result of Amicus Solicitation of 2011 on AC21 Standing for Affected Parties

by Joseph P. Whalen


I. Introduction

Back in 2015, USCIS’ AAO solicited Amicus Briefs for clarification on the applicability of AC21’s portability provision to alien beneficiaries’ right to standing in revocation proceedings concerning the I-140 immigrant visa petitions that underlie their I-485 applications for adjustment of status. They received and considered those briefs and adopted much of the reasoning in one of them (mine).  As a result, AAO reinterpreted one regulation found at 8 CFR § 103.3 (a)(1)(iii)(B) which defines “affected party” for purposes of filing an appeal with AAO.  That regulation has still not been updated to account for that reinterpretation. Instead it is addressed in 8 CFR 205.1(a)(3)(iii)(C) and (D), pertaining to revocations and notice thereof, as follows:

8 CFR § 205.1 Automatic revocation.

(a) Reasons for automatic revocation. The approval of a petition or self-petition made under section 204 of the Act and in accordance with part 204 of this chapter is revoked as of the date of approval:

 (3) If any of the following circumstances occur before the beneficiary's or self-petitioner's journey to the United States commences or, if the beneficiary or self-petitioner is an applicant for adjustment of status to that of a permanent resident, before the decision on his or her adjustment application becomes final:

(iii) Petitions under section 203(b), other than special immigrant juvenile petitions.

(C) In employment-based preference cases, upon written notice of withdrawal filed by the petitioner to any officer of USCIS who is authorized to grant or deny petitions, where the withdrawal is filed less than 180 days after approval of the employment-based preference petition, unless an associated adjustment of status application has been pending for 180 days or more. A petition that is withdrawn 180 days or more after its approval, or 180 days or more after the associated adjustment of status application has been filed, remains approved unless its approval is revoked on other grounds. If an employment-based petition on behalf of an alien is withdrawn, the job offer of the petitioning employer is rescinded and the alien must obtain a new employment-based preference petition in order to seek adjustment of status or issuance of an immigrant visa as an employment-based immigrant, unless eligible for adjustment of status under section 204(j) of the Act and in accordance with 8 CFR 245.25.

(D) Upon termination of the petitioning employer's business less than 180 days after petition approval under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or 203(b)(3) of the Act, unless an associated adjustment of status application has been pending for 180 days or more. If a petitioning employer's business terminates 180 days or more after petition approval, or 180 days or more after an associated adjustment of status application has been filed, the petition remains approved unless its approval is revoked on other grounds. If a petitioning employer's business terminates the job offer of the petitioning employer is rescinded and the beneficiary must obtain a new employment-based preference petition on his or her behalf in order to seek adjustment of status or issuance of an immigrant visa as an employment-based immigrant, unless eligible for adjustment of status under section 204(j) of the Act and in accordance with 8 CFR 245.25.

            As is evident from the above, a special circumstance was carved out in the revocation regulation which is further cross-referenced in 8 CFR § 205.2 but it is not worth copying and pasting.

II. The major changed regulation cross-refenced above.

8 CFR § 245.25 Adjustment of status of aliens with approved employment-based immigrant visa petitions; validity of petition and offer of employment.

(a) Validity of petition for continued eligibility for adjustment of status. An alien who has a pending application to adjust status to that of a lawful permanent resident based on an approved employment-based immigrant visa petition filed under section 204(a)(1)(F) of the Act on the applicant's behalf must have a valid offer of employment based on a valid petition at the time the application to adjust status is filed and at the time the alien's application to adjust status is adjudicated, and the applicant must intend to accept such offer of employment. Prior to a final administrative decision on an application to adjust status, USCIS may require that the applicant demonstrate, or the applicant may affirmatively demonstrate to USCIS, on Form I-485 Supplement J, with any supporting material and credible documentary evidence, in accordance with the form instructions that:

(1) The employment offer by the petitioning employer is continuing; or

(2) Under section 204(j) of the Act, the applicant has a new offer of employment from the petitioning employer or a different U.S. employer, or a new offer based on self-employment, in the same or a similar occupational classification as the employment offered under the qualifying petition, provided that:

(i) The alien's application to adjust status based on a qualifying petition has been pending for 180 days or more; and

(ii) The qualifying immigrant visa petition:

(A) Has already been approved; or

(B) Is pending when the beneficiary notifies USCIS of a new job offer 180 days or more after the date the alien's adjustment of status application was filed, and the petition is subsequently approved:

(1) Adjudication of the pending petition shall be without regard to the requirement in 8 CFR 204.5(g)(2) to continuously establish the ability to pay the proffered wage after filing and until the beneficiary obtains lawful permanent residence; and

(2) The pending petition will be approved if it was eligible for approval at the time of filing and until the alien's adjustment of status application has been pending for 180 days, unless approval of the qualifying immigrant visa petition at the time of adjudication is inconsistent with a requirement of the Act or another applicable statute; and

(iii) The approval of the qualifying petition has not been revoked.

(3) In all cases, the applicant and his or her intended employer must demonstrate the intention for the applicant to be employed under the continuing or new employment offer (including self-employment) described in paragraphs (a)(1) and (2) of this section, as applicable, within a reasonable period upon the applicant's grant of lawful permanent resident status.

(b) Definition of same or similar occupational classification. The term “same occupational classification” means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.

[81 FR 82490, Nov. 18, 2016]

The above language still falls short of spelling out the reinterpreted stance on standing and notice.  USCIS instead, issued and to this day relied on a Guidance Memo announcing a change to the Policy manual as noted below.

III.  As posted on the USCIS website.

November 11, 2017

This Policy Memorandum (PM) adopts and provides guidance on the implementation of the Administrative Appeals Office’s (AAO) adopted decision in Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017).

November 11, 2017

Matter of V-S-G- Inc. clarifies that beneficiaries of valid employment-based immigrant visa petitions who are eligible to change jobs or employers ("port") and who have properly requested to do so under section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j), are “affected parties” under DHS regulations for purposes of revocation proceedings of their visa petitions and must be afforded an opportunity to participate in those proceedings.

III. An excerpt from Matter of V-S-G, Inc.

“B.  Amicus Curiae Briefing

Prior to the Second Circuit decision, but in light of this developing jurisprudence,18 we solicited amicus curiae briefing on the question of whether beneficiaries of certain employment-based immigrant visa petitions, especially beneficiaries who are subject to the portability provisions of AC21, have standing to participate in the administrative adjudication process, including standing to appeal to this office.19

Most of the briefs advocated generally for AC21 beneficiary standing. For example, one noted that AC21 significantly changed the law by permitting beneficiaries who met its criteria to complete the adjustment of status process independent of the original petitioner, and thus recommended that DHS interpret the regulations to permit these beneficiaries – whether or not their adjustment of status applications had been pending for more than 180 days – to receive notice and an opportunity to respond to any adverse actions relating to their visas. This amicus also recommended that DHS amend its regulations to afford all beneficiaries notice and an opportunity to respond in all visa petitions.

Another amicus advocated for beneficiary standing in cases where the beneficiary of an employment-based visa petition has an application for adjustment of status pending for at least 180 days, whether the visa petition has been approved or is still pending. This amicus noted that AC21 exists to protect the interests of sponsored workers and that, pursuant to recent developments in the case law, a beneficiary who falls under AC21’s provisions must be given standing to defend the employment-based visa petition in all contexts in which the petition’s validity is placed in question.

A third amicus stated that AC21 beneficiaries should have standing to prevent bad-faith employers from taking advantage of beneficiaries’ dependence on employers for their immigration benefits. Finally, one amicus noted that the employment-based immigration framework is designed to protect U.S. workers, in that it permits U.S. employers to hire foreign nationals only if U.S. workers are not available and there will be no adverse effect on U.S. wages or working conditions. Although arguing for a general rule of a lack of judicial or administrative standing for employment-based immigrant visa beneficiaries, this amicus apparently conceded an exception for AC21 beneficiaries.

18 See, e.g., Bernardo ex rel. M&K Eng’g, Inc. v. Johnson, 814 F.3d 481 (1st Cir. 2016); Rajasekaran v. Hazuda, 815 F.3d 1095 (8th Cir. 2016); Kurapati, 732 F.3d 1255; Patel v. USCIS, 732 F.3d 633 (6th Cir. 2013); Mehanna v. USCIS, 677 F.3d 312 (6th Cir. 2012); Green v. Napolitano, 627 F.3d 1341 (10th Cir. 2010); Abdelwahab v. Frazier, 578 F.3d 817 (8th Cir. 2009); Sands v. DHS, 308 F. App’x 418 (11th Cir. 2009) (per curiam); Ghanem v. Upchurch, 481 F.3d 222 (5th Cir. 2007); Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196 (3d Cir. 2006); El-Khader v. Monica, 366 F.3d 562 (7th Cir. 2004); ANA Int’l Inc. v. Way, 393 F.3d 886 (9th Cir. 2004); Mohammad v. Napolitano, 680 F. Supp. 2d 1 (D.D.C. 2009). But see Musunuru v. Lynch, 831 F.3d 880 (7th Cir. 2016).

19 We appreciate the several thoughtful briefs we received in response to our solicitation.”

Matter of V-S-G- Inc., Adopted Decision 2017-06, pg. 8, (emphasis added).

            I do not appreciate their characterization of “apparently conceded an exception”;  I was very blatant and obvious about it. You can see this for yourself as USCIS has posted the briefs on their website. See the AAO’s Amicus Curiae page excerpted below.

Past Amicus Solicitations[1]

In response to a 2015 solicitation (PDF, 60.79 KB) regarding whether the beneficiaries of certain immigrant visa petitions have standing to participate in the administrative adjudication process, the AAO received six responsive amicus briefs: Brief 1, Brief 2 (PDF, 1.47 MB), Brief 3 (PDF, 967.41 KB), Brief 4 (PDF, 2.53 MB), Brief 5 (PDF, 6.58 MB), Brief 6 (PDF, 2.34 MB).

In response to a 2011 solicitation (PDF, 35.57 KB)regarding extraordinary ability petitions, we received five amicus briefs: Brief 1, Brief 2, Brief 3, Brief 4, Brief 5.

My briefs to these two solicitations were number five for each. The 2011 briefs have been archived. It is curious that USCIS archived the responses to the solicitation but have left the older solicitation document posted.  I submitted a FOIA Request for copies of the 2011 briefs but FOIA responded that there was “No Record” to which I say “Bullshit!”.  I have filed an appeal already but would appreciate it if anyone out there wants to jump on board and submit their own request.  By the way, the 2011 solicitation was on the proper application of the Kazarian decision from the 9th Circuit.  USCIS most closely followed my brief on that subject as well.  I admit that I had the advantage of having worked as  a USCIS Adjudicator prior to, and again after,  submitting my briefs.

IV. Further applicability of the procedures previously employed by USCIS.

From time to time, when new legislation or Precedents are issued but until updated regulations can be published, USCIS may need to address certain other procedural matters via official interim guidance documents. This can be accomplished in several ways. For example, the latest EB-5 statutory changes made in March 2022, can be addressed via policy and/or guidance memos or in the Policy Manual, Volume 6, Part G.

In general, guidance should be given to USCIS adjudicators to fully utilize all lawful means provided in the revised statute to adjudicate a correct decision,  even when in contravention to any outdated regulations until new regulations are published and become effective.  Notably, USCIS has done so previously through Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017).  We must remember that there is a hierarchy to our laws which means that statutes and precedents both trump regulations.

Regulations were eventually changed but only in 8 CFR § 245.25 “Adjustment of status of aliens with approved employment-based immigrant visa petitions; validity of petition and offer of employment.” and partly in § 205, pertaining to revocation of immigrant petitions but it also falls short of the mark. It is actually § 103.3(a)(1)(iii)(B) that defines each “affected party” who is allowed to file an appeal. The “reinterpreted” regulation still remains unchanged to this day.

It should be noted that AAO solicited Amicus Briefs on this issue in 2015 and issued the earlier non-precedent (and not yet adopted) decision on April 28, 2017.  USCIS concurrently adopted the AAO Decision and issued it under cover of a Policy Memo accompanied by a Guidance Memo announcing changes to the Policy Manual in November 2017 as noted above.

To summarize, in that case, AAO determined a new interpretation for the old regulation pertaining to “standing” to file an appeal, but which actually defines the “affected party” who may do so.  Specifically, the narrow exception related to adjustment applicants who have properly ported or requested to port to new employment that is the same or similar (including promotions), and whose I-485 adjustment application has remained pending over 180 days (roughly six months) whether with the same or a different employer as allowed under 8 USC § 1154(j)  (INA § 204(j)) “Job flexibility for long delayed applicants for adjustment of status to permanent residence”.

The above individuals were deemed eligible for Notices of Intent to Revoke and Notices of Revocation, and in a rare instance the flat out Notice of Denial for the underlying I-140 employment-based immigrant visa. As self-petitioners, the EB-5 investors/entrepreneurs already receive such notices directly but the concept to be drawn from and the reason for my mentioning it is that the agency can and may recognize when a newly passed statute simply must take precedence over a regulation that has yet to be updated to account for the statutory change.

What I am suggesting is not novel because it has already been done by USCIS.  The only difference would be not having to wait for a case to adopt or issue as a precedent. Policy Memos and other guidance have often been used while awaiting the longer regulatory process required under the Administrative Procedures Act (APA) which is specified to be used in the latest EB-5 statutory language.

[1] This page can be found at: https://www.uscis.gov/about-us/organization/directorates-and-program-offices/administrative-appeals-office-aao/amicus-curiae


About The Author


Joseph P. Whalen is an independent EB-5 consultant, advocate, trainer and advisor.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.