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AC21 H1b Visas – Immigration Judges Given Needed Discretion in Deportation of Employment-Based Visa Holders

Some good news for visa holders that are about to loose their visa sponsored jobs or already lost the visa job. In a decision issued today by the Board of Immigration Appeals (BIA) in Matter of Neto, which empowers immigration judges who are considering deportation of individuals with approved work-related visa petitions and pending permanent residence applications. The issue at stake is whether an immigration judge has the authority to decide whether the approved visa petition – issued for one job – remains valid when the individual changes jobs. Without a valid visa petition, the individual will not be eligible for permanent residence.

In 2000, Congress passed the American Competitiveness in the Twenty-First Century Act, which allowed applicants for permanent residence based on approved visa petitions the flexibility to change jobs. However, in 2005, the BIA decided in Matter of Perez-Vargas that an immigration judge had no authority to decide whether a new job was the same as or similar to the old job, which determines validity of their visa petition. This left these applicants for permanent residence in limbo, stripping them of the ability to benefit from the 2000 law while in removal proceedings because the judges couldn’t, and the United States Citizenship and Immigration Service wouldn’t, determine the validity of their visa petition.

Today, in Matter of Neto, the BIA overruled its own earlier decision that denied judges this authority and will now allow them to decide whether a new job is acceptable, thus keeping the individual’s eligibility for permanent residence intact. In which case, the visa petition remains valid and the immigrant worker can proceed with an application to become a lawful permanent resident – potentially saving them from deportation.

Read the amicus brief filed by the Legal Action Center Download file