Under the American Competitiveness in the Twenty-First Century Act (AC21) applicants for permanent residence based on approved immigrant visa petitions are permitted to "port" or change jobs to a job of the same or similar occupational classification once the permanent residence application has been pending for at least 180 days.
The freedom to change jobs provided by AC21 was somewhat marred in 2005 by the Board of Immigration Appeals (BIA)'s decision in Matter of Perez-Vargas. In that case the BIA decided that a determination of whether a new job is in the same or similar occupational classification involved the adjudication of an employment-based visa petition and that immigration judges had no jurisdiction to make a “redetermination of the visa petition’s validity,” by deciding whether a new job was in the same or similar occupational classification as the old job. For those applicants in removal (deportation) proceedings this decision left applicants out in the cold because it prevented immigration judges from determining the validity of the visa petition and often eliminating the last possibility for the foreign national the ability to exercise portability in removal proceedings.
The uncertainty that the Matter of Perez-Vargas created was all but erased in the recent BIA decision, Matter of Neto. The case overrules Matter of Perez-Vargas and allows immigration judges to make the decision on whether a new job is in the same or similar occupational classification as the old job, which maintains the foreign national's eligibility for permanent residence. The decision in Matter of Neto gives renewed hope to the many who are in the midst of removal proceedings.© 2013 Dinsmore & Shohl LLP. All rights reserved.