Q & A on EB1A Beneficiary of Approved Petition Who No Longer Has Relationship With Petitioner
- Introduction
- Q. Under What Basis is Self-Petitioning Permitted for EB1A?
- Q. Is an Alien Considered to be a “Self-Petitioner” Even if the I-140 is Filed on His or Her Behalf?
- Q. Does the Beneficiary of an Approved EB1A Petition Filed by an Employer (i.e., non-self-petitioning case) need to find a new employer and job offer in order to exercise section 204(j) portability?
- Conclusion
Introduction
Aliens seeking an immigrant visa in the employment-based first preference category (EB1) for aliens of extraordinary ability (EB1A) is permitted to self-petition and do not need to provide evidence of a job offer in order to have his or her petition approved or to obtain an immigrant visa or adjustment of status. This distinguishes the EB1A immigrant visa category from the other employment-based first preference categories and from all employment-based immigrant visa categories except for those in the employment-based second preference category who are granted National Interest Waivers [see article].
However, just because the EB1A category permits self-petitioning this does not mean that an individual seeking a visa must petition for him or herself. An employer may file a petition in the EB1A category on behalf of a beneficiary and include evidence of a specific job offer, which would be required for most other employment-based preference categories. This brings up an interesting question: What happens in the case of an individual who is the beneficiary of an approved EB1A immigrant visa petition but whose relationship with the employer lapses before the individual seeks adjustment of status? In this article, we will explore the issue through a question and answer format, discovering in the end that such an individual is eligible to continue pursuing adjustment of status without a new job offer, provided that he or she otherwise meets all of the applicable requirements.
Q. Under What Basis is Self-Petitioning Permitted for EB1A?
Answer: 8 C.F.R. 204.5 explicitly permits “[a]n alien, or any person on behalf of the alien” to file an Form I-140, Immigrant Petition for Alien Worker, to accord preference in the EB1A extraordinary ability preference.
The regulation interprets the relevant statutory provisions. Section 203(b)(1)(A)(ii) and (A)(iii) of the Immigration and Nationality Act (INA) permits an alien to be granted an immigrant visa in this category in order to continue to work in his or her area of extraordinary ability and if his or her entry into the United States “will substantially benefit prospectively the United States.” Section 204(a)(1)(E) states explicitly that any alien classifiable under section 203(b)(1)(A) may file a petition for status or have a petition filed on his or her behalf by any person.
Q. Is an Alien Considered to be a “Self-Petitioner” Even if the I-140 is Filed on His or Her Behalf?
Answer: The regulations addressed in the previous question clearly distinguish between a petition filed by the alien and a petition filed by someone on behalf of the alien. There is additional evidence, beyond this regulation, that the USCIS distinguishes between self-petitions filed for EB1A preference and petitions filed on behalf of the alien. However, as we will later see, this point likely constitutes a distinction but not a difference for the purpose of maintaining eligibility for a visa after parting with an employer subsequent to the approval of the I-140.
The USCIS uses the Adjudicator's Field Manual (AFM) as guidance for its employees. At AFM 22.2(i), the AFM recognizes “first preference petitions filed on behalf of” all EB1 beneficiaries, not distinguishing between EB1A, which requires neither a separate petitioner nor a job offer, and EB1B and EB1C, which require both. The AFM distinguishes the EB1A category at AFM 22.2(i)(B), where it makes note of the fact that “the alien may 'self-petition' for [EB1A] classification.” This is noteworthy because it not only recognizes that EB1A permits self-petitioning, but it also makes clear that self-petitioning is only one option. The language of the AFM clarifies that the EB1A category permits both self-petitioning and employer petitioning, the latter of which may work similar in the EB1A contest as in the EB1B and EB1C contexts.
On November 11, 2017, the United States Citizenship and Immigration Services (USCIS) designated the Administrative Appeals Office (AAO) decision in Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017) [PDF version], as binding USCIS policy. In Matter of V-S-G- Inc., the AAO held that the beneficiary of a valid immigrant visa petition who has requested to exercise I-140 portability under section 204(j) of the INA is an “affected party” for purposes of revocation proceedings, meaning that they must be notified of the proceedings and given the opportunity to participate. For our purposes, the decision is noteworthy for its explanation of the distinction between “petitioners” and “self-petitioners. First, the decision carefully distinguishes between petitioners and beneficiaries throughout. Most specifically, in footnote 12 on page 5 of the decision, the AAO stated that “[t]his distinction between a petitioner and a beneficiary is by far the majority rule, but the law includes certain exceptions to allow discrete cases of individuals to apply for immigration benefits…” before listing section 204(a)(1)(E) as one such case.
Thus, it seems clear that the statutes, regulations, and agency guidance all contemplate a distinction between self-petitioning and other cases under the EB1A umbrella. However, for purpose of answering the central question concerning the Q&A, the distinction makes little difference.
Q. Does the Beneficiary of an Approved EB1A Petition Filed by an Employer (i.e., non-self-petitioning case) need to find a new employer and job offer in order to exercise section 204(j) portability?
Section 204(j) of the INA allows applicants for adjustment of status based on an approved I-140 petition to change jobs once the adjustment of status application has been unadjudicated for 180 days or more, provided that the new position is in the same or similar occupational classification. Please see our articles on I-140 portability [see article] and the same or similar requirement [see article] to learn more.
Essentially, the question is whether an individual who had an EB1A petition filed on his or her behalf is subject to the requirements of needing a job offer and subsequent employer (note, however, that one can port to self-employment provided that the requirements are met) by virtue of having had a petition filed on his or her behalf in the first instance. The answer, according to past and current guidance, appears to be no.
The Form I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) is a required form for most individuals seeking to exercise section 204(j) portability. The Supplement J instructions read as follows with regard to EB1A cases and EB2 National Interest Waiver cases:
Individuals seeking or granted a National Interest Waiver of the job offer requirement and individuals seeking or granted [EB1A] classification … do not need to file Supplement J. Because these employment-based immigrant visa categories are not tied to a specific job offer, individuals seeking or granted classification as an alien of extraordinary ability [EB1A] or seeking or granted a National Interest Waiver of the job offer requirement [for EB2 classification] do not have to file Supplement J when filing Form I-485 or to request job portability under INA section 204(j). (Emphasis added.)
Thus, the USCIS takes the position on the Supplement J that an EB1A petition need not include the Supplement J even in cases where the petition is filed by a prospective employer. Furthermore, an individual seeking adjustment of status based on an approved I-140 for extraordinary ability is not required to submit the Supplement J when seeking to change employers. This is because EB1A classification is not tied to a specific job offer even in cases where the petition is filed by an employer.
Interestingly, USCIS's current policy regarding the ability of an EB1A beneficiary of a Form I-140 filed by a prospective employer to find new employment reflects its pre-AC21 [see category] position on the issue. On January 25, 1993, the then Director of the Immigration and Naturalization Service (INS) Immigrant Branch for Adjudications, Edward H. Skerrett, responded to the question of whether an alien who had an approved Form I-140 filed on his or her behalf in the EB1A category remains valid when the alien intends to pursue other work opportunities.1 Skerrett concluded that the alien would remain classifiable as EB1A because the category does not require a petitioner, job offer, or labor certification. However, Skerrett then noted that the alien would still have to demonstrate how he or she planned to work in the United States, and would have to submit documentation at the adjustment interview. Although this letter is somewhat dated, it was cited as authoritative in the 14th (2015) edition of Kurzban's Immigration Law Sourcebook.2
The end of Skerrett's letter and the overall statutory and regulatory scheme do highlight a pertinent issue for an EB1A beneficiary of an approved I-140 that was filed by a prospective employer and who then changes employment prior to seeking adjustment of status. In order to be or remain eligible for EB1A classification, the alien must still establish how he or she plans to work in the area of his or her extraordinary ability in the United States. Thus, if the alien's petition was predicated on an offer of employment, he or she would have to present evidence for the adjustment interview demonstrating how he or she intends to keep working in the area of extraordinary ability after becoming a permanent resident.
Conclusion
The EB1A immigrant visa classification is unique in the sense that it allows aliens to self-petition without presenting proof of a single offer of employment. This provides beneficiaries of approved EB1A petitions filed by a prospective employer more flexibility in exercising job portability than is enjoyed by most other beneficiaries of approved Forms I-140. However, in order to remain in the United States after parting from a petitioning employer — where applicable — the alien must continue to demonstrate his or her plans for working in the United States in the area of extraordinary ability, and he or she must satisfy USCIS officer at the adjustment interview of the legitimacy of such plans.
Individuals seeking immigrant status in the EB1A category should always consult with an experienced immigration attorney. An experienced attorney will be able to assess the individual's case and provide guidance based on the specific facts involved.
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