The portability paradox-II

If an applicant legitimately ports under a pending adjustment of status application...

(Continued from last week's article)
If an applicant legitimately ports under a pending adjustment of status application, his or her intent to work for the sponsoring employer is no longer relevant. If on the other hand, the non-citizen did not exercise portability under Section 204(j), and the adjustment application is approved, it does not appear that he or she can exercise portability upon the acquisition of permanent residence.
At this point, upon the approval of the adjustment application, the noncitizen must demonstrate that he or she had the intent to work for the employer. Not working for the employer, or reporting to work for that employer, if there was no porting prior to the adjudication of the application is no longer appears to be an option. Section 204(j) portability thus seems to put those in a favorable situation prior to the successful adjudication of the adjustment application.
If such persons did not have an offer of same or similar employment prior to the approval of the adjustment application, they must demonstrate they had an intent to work for the sponsoring employer. Portability's paradox, thus, favors the person who was able to demonstrate a job offer in a same or similar job before adjudication of the application but not after.
 Furthermore, Section 204(j) only benefits an adjustment of status applicant. If the individual is overseas waiting for a visa appointment at the US consulate instead of adjusting status in the US, he or she cannot avail of this benefit.
An adjustment application is mostly approved by an anonymous examiner at a distant USCIS Service Center in either Nebraska or Texas prior to the applicant knowing about it. Suppose the examiner approved the application at 10 am in the morning on February 13, 2009. It takes a few days for the applicant to receive the good news in the mail (although electronic notification is quicker).
If the non-citizen had a bona fide offer in the same or similar job at 9 am on February 13, 2009, which he or she intended to take up, it can be argued that he or she had legitimately ported under Section 204(j). This individual still had a pending adjustment of status application. If on the other hand, this person received the offer of new employment in a same or similar job at 10.05 am, five minutes after the application was approved, he or she technically could not have taken advantage of Section 204(j) portability and would still need to demonstrate an intent to work for the sponsoring employer. At 10.05 am on February 13, this person was no longer an adjustment application and Section 204(j) technically only applies to pending adjustment applicants.
It is hoped that the USCIS will not penalize a non-citizen in such a predicament. And if the government still goes ahead by charging her with deportability, she should challenge the charges and not give up until the matter is heard in a federal court of appeals.
The best argument is that Congress did not intend to put this person who unfortunately changed her intention 5 minutes after the adjustment application was approved, but unbeknownst to her, in a worse off position as a person who was able to change his intention just prior to the adjudication of the application.
Congress by enacting AC21 intended to ameliorate the plight of applicants who were waiting endlessly for their green card and it would be inequitable, perhaps bordering on involuntary servitude, for such a person to maintain an intent to work for the sponsoring employer for years on end.
There are other provisions in AC21 that provide similar relief, such as extending the H-1B status beyond the six year limit, and thus it can be argued that the entire purpose of AC21 was to provide relief to professional and skilled non-citizens who are legally here but stuck in the pipeline for the green card.