H1B Visa Lawyer Blog
An announcement on October 20 from US Citizenship and Immigration Services (USCIS) revealed that two decisions by the USCIS Administrative Appeals Office (AAO) are now binding precedent, also known as law. The decisions made by the AAO are a joint collaboration between the US Department of Homeland Security (DHS) and the US Department of Justice (DOJ). DHS and the Attorney General must agree that a particular immigration appeals case is grounds for establishing a universal rule that would apply to all future cases before it becomes an AAO precedent decision. The two binding precedents created state an applicant’s petition must first be considered “valid” before the validity can be considered if the applicant moves to a new job and spells out the definition of an “American firm or corporation.”
In first case, Matter of AL WAZZAN, the applicant asked for adjustment of status to permanent residence even though the applicant never provided documentation supporting his eligibility for a permanent residence visa. After two of the applicant’s original Form I-140 visa petitions were denied, the applicant claimed he had an offer for other employment and wished to readjust his status. The applicant argued that he should be allowed status adjustment due to the fact his application has been pending for more than 180 days from the time it was ruled upon. The underlying problem found in the applicant’s case that the AAO decided to create a binding precedent for is Section 245(a) of the Act which “requires the adjustment applicant to have an ‘approved’ petition.”After reviewing the case, AAO found that the applicant’s assertions were not convincing enough to allow for his adjustment of status. Even though AC21 states that a petition shall remain valid even if unadjudicated for 180 days if the applicant changes to a new job or employer in the same or similar field, the applicant in this case did not have a “valid” petition to begin with for the legislation to be effective.
In the second case, Matter of CHAWATHE, the Acting District Director denied the applicant’s application to preserve residence for naturalization purposes. The overlying question in this case was whether a publicly traded corporation could be considered an “American firm or corporation.” After reviewing the case, AAO found that the previous statement may be deemed true under Section 316(b) of the Act, only if the applicant proves that the corporation is incorporated in the US and that the corporation’s stock is strictly within US markets. An applicant who has filed a Application to Preserve Residence for Naturalization Purposes does not need to be physically in the country for the required two and half years of residency as long as the employer is an “American firm or corporation.” The director determined that in this case, the applicant failed to prove ChevronTexaco Corporation, his employer, was an “American firm or corporation.” The applicant argued that the employer was incorporated in the state of Delaware and that the company he worked for overseas is considered a subsidiary of ChevronTexaco. Although the company was incorporated in Delaware, AAO asserts that an applicant must also establish 50% of the company is owned by US citizens, which the applicant in this case did not. However, incorporation doesn’t necessarily determine if a company is an “American firm or corporation.” Under the evidence submitted, AAO found that ChevronTexaco is in fact an incorporation of the US and Saudi Arabia Texaco, and that the company the applicant went to go work for is a legitimate subsidiary of the company. In conclusion, AAO found ChevronTexaco Corporation in fact meets the definition of an “American corporation” and the applicants appeal was sustained.