Porting and I-140 validity issue before BIA again

Posted in statements at 7:17 pm by Lalita Haran

Day after tomorrow i.e. 10/1/09, the Board of Immigration Appeals (BIA) hears on the portability issue. BIA would decide whether it should follow the 4th Circuit Court of Appeals vacating the Board’s earlier decision. The large issue remains whether immigration judge could determine validity of the I-140 employment based immigration petition while focus is on whether a foreign national could use the approved I-140 petition after changing employers. (posted 09/29/09).

The issue is an extremely important one in employment based immigration process keeping in mind the need of the foreign nationals’ to be able to change jobs while awaiting the lengthy delay in petition approval and the congressional recognition of such need to port jobs to check employer abuse.

Earlier BIA had held that immigration judge does not hold the jurisdiction to determine validity of the I-140 employment based immigration petition. However the 4th Circuit, the federal court of appeals, has vacated this order of the board and the Fifth and the Sixth Circuit Courts have followed the 4th Circuit.