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Immigration Judges Now Have Authority to Make Employment Portability Decisions

On January 21, 2010, the Board of Immigration Appeals (BIA) held that Immigration Judges (IJ’s) can decide if an I-140 immigrant petition, which is filed when seeking an employment-based green card, remains valid after the beneficiary changes jobs or employers. There is a law, known popularly as AC21, that allows a beneficiary of an immigrant petition to switch jobs during the employment-based green card process (provided certain criteria are met). Whether someone is eligible to port (transfer) to a new employer has typically been a decision reserved for the United States Citizenship and Immigration Services (USCIS), which is not part of the court system. Today’s BIA decision places this authority in the hands of IJ’s for those in deportation/removal proceedings. This is a significant decision for employment-based green card beneficiaries in proceedings as it allows IJ’s the authority to determine that an individual’s employment-based immigrant petition is still valid and they are still eligible for permanent residence in the U.S.