Tag Archive for: portability

Cyrus Mehta

Does the Signing of the I-485 Supplement J By a New Employer Constitute Visa Sponsorship?

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Cyrus D. Mehta and Jessica Paszko*

Portability under Section 204(j) of the Immigration and Nationality Act (INA) allows certain employment-based green card applicants to change jobs or employers while their adjustment of status (Form I-485) application is pending. Portability becomes available once the I-485 has been pending for at least 180 days. It must be exercised by submitting Supplement J (Form I-485J), which confirms the new job offer and its compliance with the same or similar occupational classification as the original job offer that was the basis of Form I-140. Once an applicant’s I-140 priority date is current, there is a race to file an I-485J before the I-485 is approved to ensure the new employment details are recognized and to avoid any potential complications in the adjustment process or later at the time of naturalization. Foreign nationals with backlogged Form I-140 priority dates are generally not envied by their counterparts whose priority dates are current or about to become current. Ironically, the latter group may find themselves green with envy, wishing their non-current priority date could afford them additional time to secure a job offer when faced with unemployment upon their I-140 priority date becoming current.

We’ve previously addressed the dilemma of a green card being approved prior to filing the I-485J, as well as the uncertainties faced by foreign nationals terminated during the “Twilight Zone” with an I-485 pending for less than 180 days. Yet, in exploring these issues, we may have overlooked a crucial element of the I-485J: the employer’s willingness to endorse it. A laid-off worker with a distant priority date need not fear these dilemmas or uncertainties, even if their adjustment has been pending for less than 180 days. They can diligently pursue new opportunities for similar employment, assuming their I-765 application for an Employment Authorization Document (EAD) has been approved, and then request their new employer to execute an I-485J on their behalf. However, navigating this process may not be straightforward, particularly when addressing the standard screening question posed by employers to avoid a charge of discrimination or bias: “Do you now, or will you in the future, require sponsorship for employment visa status (e.g., H-1B visa status, etc.) to work legally for our company in the United States?”

Arguably, a foreign national employed under a valid EAD does not necessitate ‘sponsorship’ for a visa. Yet, the new employer must execute an I-485J on their behalf. Is an I-485J synonymous with sponsorship? Technically speaking, probably not, though the new employer should be apprised of this material fact which raises the question of when it would be appropriate to raise this with the employer?

Answering the screening question in the negative can be defended, as signing an I-485J does not imply the type of ’employment visa’ sponsorship the question typically refers to. While the need for an I-485J may not need to be disclosed during initial screening, could withholding this information until after signing the offer letter be justified? Introducing the I-485J requirement during the interview process, before the offer letter is finalized, could potentially complicate matters although the timing of such a disclosure should be determined on a case by case basis. From the foreign national’s perspective, it may be prudent to delay discussing the I-485J until after accepting the offer. However, if the employer learns of this requirement earlier and withdraws the offer, could the foreign national claim discrimination under INA 274B? Prevailing in such a claim is unlikely under these circumstances.

In the eyes of immigration practitioners, and employers who have been through the PERM process once or hundreds of times, hiring a foreign national with an approved I-140 and pending I-485 is a hard-to-pass-by bargain especially if they have the ideal sought after skills for the job. The new employer does not need to start the time consuming and costly PERM process anew and gets all the benefit of hiring a foreign national that has been vetted as qualified for the job by both the Department of Labor and USCIS. Surely, it would be silly for any employer to pass on hiring a prospective employee upon learning that just one simple form needs to be endorsed for the employer to take over an I-140 that another company spent significant time and resources to obtain. Although that might be the inherent reaction of the employer familiar with immigration visa sponsorship, alarm bells might go off in the ears of the cautious employer that has never sponsored any foreign nationals. From the cautious employer’s perspective, a signature in the employer’s section on the I-485J could expose them to perjury. The I-485J contains one section that must be signed by the applicant and another section that must be signed by the prospective employer who has to describe the job title, duties, and the Standard Occupational Classification (SOC) code, which may be daunting for the employer to figure out, and even more so in light of signing under penalty of perjury.

An employer’s unwillingness to attest to the contents of the I-485J under penalty of perjury may not be the only consideration. A fearless employer who has a hard time believing the government would bother bringing perjury charges against him for something like this would gladly sign off on an I-485J but for the form’s request for information that is fundamentally at odds with the employer’s business practices. Indeed, an employer who solely offers employment-at-will or who never specifies job duties or job duration in offer letters may be hesitant to change its longstanding practice and provide information in the I-485J it has never put in writing. The employer’s unwillingness to endorse an I-485J because to do so would contradict its normal business practices would also cut against a claim that the employer engaged in discrimination. On the other hand, would a discrimination claim fare any better if the employer’s long standing practice is to include job duties and job duration in its offer letters? From that employer’s perspective, despite its long standing practice, denying an offer of employment to a foreign national in need of an I-485J is not commensurate with discrimination because a signature on the I-485J exposes it to perjury, a major liability that its long standing practice does not even contemplate.

The pre-2017 era prior to the requirement of I-485Js offered a simpler process for adjustment applicants who sought job flexibility. During that time, applicants were generally only required to demonstrate, if questioned during a naturalization interview, that they had moved to a same or similar job. However, this approach introduced uncertainty regarding whether applicants were obligated to disclose changes in employment. With the introduction of regulations like 8 CFR § 240.25(a) many years after the enactment of INA § 204(j), clarity has been enhanced: applicants can now use Form I-485J to affirmatively demonstrate ongoing employment with the sponsoring employer or a new job in the same or similar occupation, after the application has been pending for 180 days. While not explicitly mandatory under 8 CFR § 240.25(a), the instructions on Form I-485J have effectively made it a requirement. However, although there is more certainty with the I-485J, applicants may find themselves penalized if the I-485J does not get submitted before the issuance of a green card. This creates a paradoxical situation where those who secured employment before their I-485 approval may benefit more than those who did not, assuming that the employer is not reluctant to sign its part the first place after being confronted with an I-485J asking for job duties and an SOC code.

*Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Termination in the Twilight Zone When the I-485 Application Has Been Pending for Less Than 180 Days

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By Cyrus D. Mehta & Jessica Paszko*

Just a couple of months ago we considered the options available to terminated H-1B workers who want to become entrepreneurs. Since then, layoffs have not abated and we’ve continued thinking about the options available to laid off nonimmigrant workers. This time, we consider the options available to H-1B workers whose employers have filed I-485 adjustment of status applications on their behalf before they were laid off and the I-485 has been pending for less than 180 days.

For starters, laid off workers can remain in the US while their adjustment applications are pending. They are authorized to remain in the US so long as their I-485 application has not been denied.  They should also request that the employer not withdraw the prior approved I-140. Unlike 8 CFR § 214.2(h)(11) which obligates employers to notify the USCIS when an H-1B worker’s employment has ended before the end of their authorized period of stay – as that could trigger back wage liability – employers are under no such obligation with respect to I-140 beneficiaries. Therefore, the laid off workers can make a case against the employer’s withdrawal of the I-140. Under 8 CFR § 205.1(a)(3)(iii)(C), a petition that is withdrawn 180 days or more after its approval, or 180 days or more after the associated adjustment of status application has been filed, remains approved unless its approval is revoked on other grounds.

Thereafter, the laid off workers should seek new employment. Although they may be able to rely on employment authorization that will be issued based on the I-485 filing, it is recommended that their new employer file an extension of H-1B status on their behalf. They must do that within the 60 day grace period that they have in H-1B status from the termination under 8 CFR § 214.1(l)(2).  Remaining in H-1B status provides an added layer of security in case the I-485 is denied for any reason. However, once 180 days passes from the I-485 filing, and they can port, they would be more secure even if there is no underlying H-1B status.

If the laid off worker’s adjustment application has been pending for 180 days or more, then they can port to a new employer, and even self-employment, in a same or similar occupation that was the basis of their I-140 petition under INA § 204(j). Once they can port under § 204(j), the labor certification and I-140 petition are preserved, and the foreign worker can be granted permanent residence.  8 CFR § 245.25(a)(2)(ii)(B) even allows a beneficiary to port to a new employer based on an unadjudicated I-140, filed concurrently with an I-485 application, so long as it is approvable at the time of filing. The ability to port under § 204(j) when the I-485 application has been pending for 180 days or more, however, is the best case scenario. If the laid off worker’s adjustment application has not been pending for 180 days or more, then he or she cannot port to a same or similar occupation under § 204(j).

Although the laid off worker can remain in the US throughout the pendency of their adjustment application even if no longer employed by the sponsoring employer, the worker may face a bit of a predicament if the USCIS takes an action on the pending adjustment application, for instance, by issuing a Request for Evidence (RFE) or scheduling an interview. If the RFE requests an I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j), and the adjustment application has not been pending for 180 days or more, then the laid off worker is in trouble. As there is usually a 90 day deadline to respond to RFEs, the laid off worker may be able to submit a completed Supplement J, either signed by a new employer or by themselves if self-employed, if the 180th day of submitting their adjustment application comes around before their RFE response deadline. But of course, there may be individuals who are not as lucky. If they do not respond to the RFE, then the adjustment will likely be denied. On the other hand, under INA § 204(j), they cannot submit a Supplement J if 180 days have not elapsed since the filing of their adjustment application. If the adjustment application is subsequently denied, they can submit an I-290B Motion to Reopen or Reconsider. There is at least an arguable basis that the motion might work

The laid off worker faces a similar problem if they are scheduled for an adjustment interview that will fall on a date that is before the 180th day of their I-485 application filing and will thus be unable to produce an executed Supplement J. While one can reschedule a USCIS interview due to a medical or family emergency, unforeseen events, or other personal circumstances such as a wedding, funeral, or important family event that conflicts with the interview, one may not be able to reschedule an adjustment interview on account of not being able to present a Supplement J, but it is always worth trying.

Suppose the laid off worker does not have to respond to any RFEs or attend any interviews and USCIS approves the adjustment application even though the laid off worker no longer works for the employer that sponsored the green card or intends to work for that employer – then what? From the foreign worker’s perspective, they can argue that they were willing to work for the employer who sponsored them but the employer was not willing to give them the job in accordance with the I-140 petition and they should still be granted adjustment of status. There are decisions holding that as long as the noncitizen took up the job or reported for work, and then left later due to a change in intention (as a result of finding a more attractive job elsewhere), this individual could not be found excludable or deportable. In Matter of Cardoso, 13 I.&N. Dec. 228 (BIA 1969), the respondent, a Portuguese citizen, was sponsored to work for a Rhode Island employer as a braider tender. Upon reporting to the employer with his wife for work, the foreman indicated that there was a possibility that both would be laid off if they both worked for the employer. Based on the foreman’s well intentioned advice, who also stated that he would keep the braider tender job offer open, the respondent worked elsewhere first as a shoelace tipper and then as a bobbin machine operator. The BIA held that it could not impugn the validity of such an admission where a person reported for work and did not take up the job under the circumstances described above or if the person worked for some time with the certified employer but quit because he did not like the work or found a better job elsewhere. See also Matter of Marcoux, 12 I.&N. Dec. 827 (BIA 1968) (respondent who left certified trainee weaver job after 5 days for a fiber glass repairer job because he did not like the former job was not found to be deportable because he still had a valid certification at time of entry).

Notwithstanding, the USICS during a naturalization interview may still determine that lawful permanent residence status was not properly obtained, or even prior to naturalization, the USCIS could rescind that status. Even if the foreign worker can argue that they intended to accept employment there may have still not been a valid offer of employment after the foreign worker was terminated. See Matter of Rajah, 25 I.&N. Dec. 127 (although the foreign worker is not required to be employed at the time of adjustment, he must still show the continued existence of an offer of employment as set forth in the labor certification and I-140, and must also demonstrate an intent to accept employment). Therefore, it would be safest if there has been a termination during the twilight period – when the I-485 has not been pending for 180 days – to have another employer file an H-1B extension. Even if the USICS denies the I-485 application if there is an RFE before the 180 days, which cannot be complied with, the foreign worker will be in H-1B status through another employer and that new employer can recapture the old priority date under 8 CFR § 204.5(e) when starting all over with a new labor certification and I-140 petition. If the date is current at the time the I-140 will be filed, then a concurrent I-485 application can also be filed.

Given the glacial pace in adjudicating I-485 applications to completion, it is unlikely that the USCIS will currently issue an RFE within 180 days from its filing, although this blog provides guidance on steps that need to be taken just in case the USCIS becomes efficient!

(This blog is for informational purposes and cannot be relied upon as a substitute for legal advice).

*Jessica Paszko is an Associate at Cyrus D. Mehta &  Partners PLLC.

 

 

 

 

Cyrus Mehta

Khedkar v. USCIS Affirms that Employee Also Has Interest in an I-140 Petition Filed By Employer

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By Cyrus D. Mehta and Kaitlyn Box

Because an employment-based immigrant visa petition, or Form I-140, is filed by an employer on behalf of a foreign national employee who is being sponsored for permanent residency, there is sometimes a perception that both the I-140 petition and the underlying labor certification belong to the employer. They are initiated by the employer on behalf of the noncitizen employee or prospective employee who is referred to as the beneficiary. The I-140 petition is signed by the employer. Although one part of the labor certification is signed by the beneficiary, the employer still drives the labor certification process and files the application. It is the employer who also has the unilateral power to withdraw the labor certification or I-140 petition.

However, a recent U.S. District Court case, Khedkar v. USCIS, 552 F. Supp. 3d 1 (DDC 2021), reiterated the idea that a beneficiary also has an interest in the I-140 petition. Mr. Khedkar’s employer, Deloitte, had filed an I-140 petition on his behalf classifying him as a multinational manager under INA § 203(b)(C), while Khedkar concurrently filed an adjustment of status application. Khedkar then joined another employer, Alpha Net Consulting LLC, in a similar position and filed an I-485 Supplement J to notify USICS that he was porting to a similar job. The USCIS issued a Request for Evidence but Khedkar’s former employer, Deloitte, was not interested in responding after he had left the company. Khedkar then joined IBM and filed another I-485J. Khedkar did not realize that the USCIS had sent an RFE to Deloitte, which was not responded to. The USCIS denied the I-140 petition for failure to respond to the I-140 petition. Khedkar filed a motion to reopen with USCIS and then an appeal to the Administrative Appeals Office, but both agencies did not recognize Khedkar as an affected party. Khedkar sought review under the Administrative Procedures Act in federal district court. The court agreed with Khedkar that USCIS should have issued the RFE to Khedkar rather than Deloitte after he provided notification to the USCIS about his porting through I-485 Supplement J. “The result is not only at odds with the portability provision’s aim of encouraging job flexibility — it is unfair too,” Judge Contreras said.

The court’s decision in Khedkar v. USCIS is in keeping with a growing understanding that beneficiaries also have a legal interest in I-140 petitions as we also observed in a prior blog. Current regulations generally preclude beneficiaries from participating in employment-based immigrant visa proceedings, including post-adjudication motions and appeals. But this changes when a beneficiary exercises her right to job portability pursuant to INA §204(j) and 8 CFR § 245.25(a)(2)(ii)(B). If a Request for Evidence (RFE) is subsequently issued on the underlying I-140, the beneficiary may be entitled to this RFE as they may be able to respond to it even if the employer chooses not to.

INA §204(j) allows foreign workers who are being petitioned for permanent residence by their employer to change jobs once their I-485 adjustment of status application has been pending for 180 days or more. Furthermore, 8 CFR § 245.25(a)(2)(ii)(B) allows a beneficiary to port to a new employer based on an unadjudicated I-140, filed concurrently with an I-485 application, so long as it is approvable at the time of filing.

Even if a petitioner decides not to employ a beneficiary after the filing of an I-140 and I-485, this  does not preclude a petitioner from responding to an RFE issued on the underlying I-140 for a beneficiary who has already ported or who may port in the near future. This is because this intention – which is to no longer employ the beneficiary – was formed after the filing of the I-140 and I-485. Therefore, a petitioning employer may still seek to establish that the I-140 was approvable when filed pursuant to 8 CFR § 245.25(a)(2)(ii)(B), and indicate that it has no intention to permanently employ the beneficiary, so that a beneficiary may exercise job portability based on her pending I-485. Our firm had success in such a situation wherein a beneficiary of a previously filed I-140 and I-485 was able to work with a petitioner to respond to an RFE even though the beneficiary would not be employed permanently and had expressed an intention to port to a new job in the same occupational classification.  After the I-140 had been erroneously denied on grounds not related to the lack of permanent employment, our firm assisted the beneficiary in successfully reopening the I-140 with the cooperation of the petitioner, and ultimately winning approval of the I-140 and approval of the I-485 for the beneficiary.

The question remains, however, what recourse does a beneficiary have if the petitioner refuses to respond to an RFE, or otherwise cooperate with the beneficiary? May a beneficiary, for example, file an I-290B notice of appeal or motion to reopen a subsequent denial of the I-140?

The answer may be found under existing USCIS policy. Under the Policy Memo promulgated on November 11, 2017, a Beneficiary becomes an “affected party” upon USCIS’ favorable determination that the beneficiary is eligible to port. See USCIS, Guidance on Notice to, and Standing for, AC21 Beneficiaries about I-140 Approvals Being Revoked After Matter of V-S-G- Inc., PM-602-0152, Nov. 11, 2017 at page 5.  Thus, under the policy adopted by USCIS in Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017),  beneficiaries, who are affected parties as defined in the Matter of V-S-G- Inc. decision, are entitled to a copy of any decision made by USCIS and may file an appeal or motion on Form I-290B with respect to a revoked Form I-140, even though existing form instructions generally preclude beneficiary filings.

In Matter of V-S-G- Inc., which we have discussed at length in a prior blog, the beneficiary had changed employers and taken a new position after the adjustment of status application had been pending for more than 180 days.  Meanwhile, the president of their original petitioning organization was convicted of mail fraud in connection with another USCIS petition.  USCIS sent a notice of intent to revoke (“NOIR”).  When the petitioner failed to respond to the NOIR, USCIS revoked the petitioner’s approval due to the petitioner’s failure to respond. Although Matter of V-S-G-, Inc. dealt with the issue of an NOIR of an approved I-140 petition, one could argue that the AAO should extend the holding in Matter of V-S-G- to a Beneficiary who successfully ports to a new employer while the underlying I-140 remains unadjudicated.  This is because upon the filing of an I-485, Supplement J – required when the beneficiary ports or intends to port to a job in a same or similar occupational classification – the beneficiary becomes an “affected party,” and should be given a copy of any RFE, as well as a copy of any subsequent denial of her I-140. The argument for extending Matter of V-S-G is further supported by the promulgation of 8 CFR § 245.25(a)(2)(ii)(B), which enables the I-140 to be approved even if a job offer no longer exists so long as the I-140 was eligible for approval at the time of filing. See 8 CFR § 245.25(a)(2)(ii)(B)(2). 

A review of the preamble to 8 CFR § 245.25 published in the Federal Register, while not dispositive, also supports this position. The preamble notes that several commentators had expressed concern that individual beneficiaries of Form I-140s are not provided notice when USCIS seeks to revoke the approval of those petitions. In response, DHS noted that it was considering administrative action to address these concerns. See Federal Register /Vol. 81, No. 223 /Friday, November 18, 2016 /Rules and Regulations at page 82418 (hereinafter the “preamble”). Similar concerns were also raised in the preamble in the section entitled “Portability Under INA 204(j)” wherein the DHS states:

As a practical matter, petitioners have diminished incentives to address inquiries regarding qualifying Form I-140 petitions once beneficiaries have a new job offer that may qualify for INA 104(j) portability […] Accordingly, denying a qualifying Form I-140 petition for either ability to pay issues that occur after the time of filing, or for other petition eligibility issues that transpire after the associated application for adjustment of status has been pending for 180 days or more, would be contrary to the primary goal of AC21. Such a policy would in significant part defeat the aim to allow individuals the ability to change jobs and benefit from INA 204(j) so long as their associated application for adjustment of status has been pending for 180 days or more.

In a perfect world, a beneficiary ought to be able to work with a petitioner for the purpose of responding to any RFE or NOIR issued on a previously filed I-140 and I-485 despite the petitioner’s lack of intention to continue to employ the beneficiary. However, as a practical matter, a petitioning employer is likely to refuse to cooperate with a beneficiary who has already been terminated. Nonetheless, there exists a compelling argument that the beneficiary be allowed to respond due to the growing legal recognition of a beneficiary’s interest in an I-140 approval where there is also a pending I-485.  Although Matter of V-S-G-, Inc. dealt with the issue of a NOIR of an approved I-140 petition, it would be consistent with the holding to argue that if a beneficiary is able to successfully port to a new employer prior to the issuance of an RFE, that beneficiary is also an “affected party” due to her interest in demonstrating that the I-140 was approvable as filed.  USCIS ought to extend the holding in Matter of V-S-G- to any beneficiary who successfully ports while the underlying I-140 remains unadjudicated and was filed concurrently with an I-485 application. This has been affirmed in Khedkar which remains an unpublished decision.  Such an extension would go a long way towards fulfilling one of the primary goals of AC21 by allowing individuals the ability to change jobs and benefit from INA § 204(j). Even if the employer does not participate, a beneficiary should be allowed to respond to the RFE in order to establish that the I-140 was approvable when it was filed concurrently with an I-485 application.  Such an extension of the holding of Matter of V-S-G- would also be in line with the Supreme Court’s decision in Lexmark Int’l Inc. v. Static Control Components, which held that a plaintiff has the ability to sue under the Administrative Procedure Act when his or her claim is within the zone of interests a statute or regulation protects. Other courts have agreed that the original employer should not be the exclusive party receiving notice relating to an I-140 petition when the foreign national employee has ported to a new employer. Beneficiaries who have ported to new employers fall within INA § 204(j)’s zone of interests and have standing to participate in visa revocation proceedings. See Mantena v. Johnson, 809 F.2d 721 (2015)  and Kurupati v. USCIS, 775 F.3d 1255 (2014). As stated in Khedkar v. USCIS, this logic should now extend to the ability of a foreign national beneficiary of an I-140 petition to be able to respond to an RFE even before it gets denied, especially since 8 CFR § 245.25(a)(2)(ii)(B)(2) permits the beneficiary to port based on a concurrently filed unadjudicated I-140 petition and I-485 application. This regulation, which was promulgated consistent with Lexmark, will carry little force if the beneficiary is not considered an affected party in order to challenge both an RFE and a denial.

Finally, employers and their attorneys who are reluctant to share a decision involving an I-140 petition with the beneficiary especially after they have ported should recognize that the beneficiary has an interest in the I-140 petition and would be deprived in responding to a request for evidence or a denial when courts have explicitly held that they can do so. The beneficiary may also  need to know the job description in the labor certification to port to a same or similar job under INA § 204(j). They may also need the approval notice of the I-140 petition for purposes of obtaining a three-year H-1B extension under § 104(c) of the American Competitiveness in the 21st Century Act. Moreover, they may also need to know the priority date of this I-140 petition in case a new employer will file a new I-140 petition on their behalf.  Khedkar v. USCIS and other cases have affirmed the strong interest that the beneficiary who has ported under INA 204(j) has in an I-140 petition even if it was initiated and filed by the employer.

This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

 

 

Cyrus Mehta

Guide to Terminated Noncitizen Workers: Preserving Nonimmigrant Status and Permanent Residency Options

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By Cyrus D. Mehta

The sudden layoffs of nonimmigrant workers in H-1B and other statuses at Twitter and other tech companies in the US create additional concerns as their visa status is tied to the employer. Those who have been sponsored for permanent residence face additional concerns. We provide a quick guide to employees who have been laid off and how they can still be able to take steps to remain in status, and take advantage of the priority date already established on their behalf if they have been sponsored for permanent residency.  Although this blog provides guidance to terminated nonimmigrant workers, our recent prior blogs,  here and here, guide employers on their obligations when nonimmigrant workers are terminated

60 Day Grace Period

 As discussed in our prior blog, 8 CFR §214.1(l)(2) allows E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1or TN nonimmigrant workers a grace period of 60 days upon a cessation of their employment. The 60-day grace period is indeed a salutary feature and was not around during prior disaster episodes. Up until January 17, 2017, whenever workers in nonimmigrant status got terminated, they were immediately considered to be in violation of status. There was also no grace period to depart the United States. Therefore, if a worker got terminated on a Friday, and did not depart on the same day, but only booked the flight home on Sunday, this individual would need to disclose on a future visa application, for all time, that s/he had violated status. Derivative family members, whose fortunes were attached to the principal’s, would also be rendered out of status upon the principal falling out status. Thus, the 60-day grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to transition to another employer who can file an extension or change of status within the 60-day period. Similarly, the worker could also potentially change to some other status on their own, such as to F-1, after enrolling in a school. If the worker may need more time to leave the US beyond the 60 days, they can apply for a change to B-2 visitor status. Prior to January 17, 2017, nonimmigrant workers who fell out of status upon cessation of their employment, and sought a late extension or change of status had to invoke the USCIS’s favorable discretion pursuant to 8 CFR §214 .1(c)(4) and 8 CFR §248(b)(1)-(2) by demonstrating, among other things, extraordinary circumstances.

Thus, an H-1B worker who has been terminated may be able to seek another employer to file an extension of status on their behalf within the 60 day grace period. As this worker has already been counted under the H-1B cap, the employer will not need to register under the next H-1B lottery and can immediately transfer H-B status through the new employer.

The maximum time that a noncitizen can spend in H-1B status is six years. If the worker has spent less than six years in the US, they can seek to obtain the remainder of unused time in H-1B status for a maximum of six years. Any time not spent in the US during the prior H-1B status period can be recaptured based on trips made abroad. See 8 CFR 214.2(h)(13)(iii)(C).  If the individual is the beneficiary of an approved I-140 petition, and the final action date is not yet current under the State Department Visa Bulletin in the employment second (EB-2) or employment third preference (EB-3), the worker can obtain a three year H-1B extension even beyond the six years until the date has become current pursuant to § 104(c) of the American Competitiveness in the 21st Century Act. If the final action date is current under EB-2 or EB-3, the worker is entitled to a one year H-1B extension beyond six years under §106(a) of AC21. However, if an I-485 adjustment of status application has not been filed within one year, a worker may be precluded from talking advantage of the one year extension unless it can be shown that failure to file an immigrant visa or adjustment of status application was beyond the worker’s control, and this has been further explained in our prior blog.

Although a laid off L-1 worker will also be able to avail of the 60-day grace period, and is entitled to a maximum of seven years if in L-1A status or five years if in L-1B status (including recaptured time), filing an L extension through another employer would be challenging as the worker has to demonstrate that they have had one year of qualifying experience in an executive, managerial or specialized knowledge capacity for a parent, branch or subsidiary of the US entity in the past three years. If the employer can only file a change of status to H-1B, then unless the worker has previously been counted under a prior H-1B cap, they will have to wait to be registered in the next H-1B lotter in March 2023. Other options could include changing status to  O-1A if the terminated L-1  worker can qualify as a person of extraordinary ability.

 

Garden Leave and Nonproductive Status

What is less clear is when termination occurs with respect to an H-1B worker. An employer can terminate on November 1, 2022 and still pay the employee the full wage but keep this person in a nonproductive status for several weeks or months. Let’s assume in this example that the worker is terminated on November 1, 2022, but continues to be paid from November 1, 2022 till December 1, 2022 while in nonproductive status. This nonproductive period is known as “garden leave” where the terminated worker is still considered an employee but not required to engage in productive work for the employer. The employer utilizes “garden leave” to disincentivize the employee from immediately working for a competitor or as part of a severance agreement. Does the termination in this scenario occur on November 1, 2022 or on December 1, 2022, which is when the garden leave period ends and the worker ceases to receive a salary in accordance with the terms of the H-1B petition?

According to a June 2020 USCIS Policy Memo, the USCIS has indicated that “[t]he failure to work according to the terms and conditions of the petition approval may support, among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status, or both.” Based on this policy, it would be safer to consider the termination as occurring on November 1, 2022 rather than December 1, 2022. Yet, the USCIS acknowledges that there may be situations when H-1B status is not violated if the worker is on leave under statutes such as the Family and Medical Leave Act or the Americans with Disabilities Act, even if the worker is not paid.

The USCIS also gives the officer discretion to determine whether nonproductive status constitutes a violation of the beneficiary’s nonimmigrant classification. The following extract from the USCIS Policy Memo is worth noting:

In assessing whether a beneficiary’s non-productive status constitutes a violation of the beneficiary’s H-1B nonimmigrant classification, the officer must assess the circumstances and time spent in non-productive status. While neither statutes nor regulations state the maximum allowable time of non-productive status, the officer may exercise his or her discretion to issue a NOID or a NOIR to give the petitioner an opportunity to respond, if the time period of nonproductive status is more than that required for a reasonable transition between assignments. As always, if the officer encounters a novel issue, the officer should elevate that issue to local service center management or Service Center Operations, as appropriate.

A terminated H-1B worker may need more time to find another job and thus extend the commencement of the grace period to a later date, especially when the worker continues to be paid and treated as an employee during the nonproductive status. There might be a basis for the termination date to be December 1, 2022 rather than November 1, 2022 given that the USCIS allows the officer to assess the circumstances and time spent in nonproductive status, although it would be far safer and more prudent to consider November 1, 2022 as the termination date.

One should also note a 1999 advisory opinion concerning reductions in force.  USCIS indicated that a severance package that offered terminated H-1B and L-1 employees their normal compensation and benefits for a 60-day period did not preserve the beneficiaries’ nonimmigrant status. Specifically, Branch Chief Simmons wrote, “An H-1B nonimmigrant alien is admitted to the United States for the sole purpose of providing services to his or her United States employer. Once H-1B nonimmigrant alien’s services for the petitioning United States employer are terminated, the alien is no longer in a valid nonimmigrant status. However, an H-1B worker who has not been terminated, but is on leave, can distinguish his or her situation from one who has indeed been terminated.”

 

Termination after Employment Sponsorship for Permanent Residence Already Commenced

 If the worker is already the beneficiary of an approved I-140 petition and is terminated, a new employer in addition to transferring the H-1B status may also file a new labor certification, and upon approval, file another I-140 petition. The priority date of the prior I-140 petition can still be retained.

Under 8 CFR 204.5(p), an employment authorization document (EAD) may be issued to beneficiaries of I-140 petitions in the United States on E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and if their priority dates are not current. While compelling circumstances have not been defined in the rule, DHS has suggested illustrative circumstances in the preamble to the high skilled worker rule, which includes serious illness and disabilities, employer dispute or retaliation, other substantial harm and significant disruptions to the employer.   Regarding what may constitute significant disruption, DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that may no longer render an L-1 visa status valid.

Anecdotal evidence suggests that USCIS has been very niggardly in issuing employment authorization under compelling circumstances.

If the Form I-485 application has been pending for 180 days or more, the worker can exercise job portability under INA 204(j) by taking up a job or being offered a job in a same or similar occupation with another employer. The underlying labor certification and I-140 will still remain valid upon exercising portability under INA 204(j). The applicant will need to submit Form I-485, Supplement J.

Under 8 CFR 245.25(b), “[t]he term “same occupational classification” means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.”

It is also possible for an adjustment applicant to “port” to self-employment if employment prospects are bleak.

[This blog is for informational purposes, and should not be viewed as a substitute for legal advice]

 

 

 

 

 

 

Cyrus Mehta

I-485 Supplement J Should Not Be the Only Vehicle to Express Portability

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By Cyrus D. Mehta

It is well settled that noncitizens must have the requisite intent to work for their employers at the time of entry or adjustment of status under the employment second (EB-2) or employment third preferences (EB-3) unless they are exercising job portability under specific statutory provision. A noncitizen who does not have such a bona fide intent is potentially inadmissible under Section 212(a)(5) of the Immigration and Nationality Act (INA) or may be deportable after entry.

Noncitizens who never reported to the certified job after entering the US as a permanent resident have been found deportable. For instance, in Spyropoulos v. INS, 590 F.2d 1 (1st Cir. 1978), a Greek national with Canadian citizenship, was offered a job as a cabinet maker in Washington DC. and the prospective employer obtained labor certification, but was unable to obtain confirmation of the job offer prior to entering the US. Upon arrival in the US, the respondent worked instead in Massachusetts as a woodworker and shortly thereafter with yet another employer as a machinist. The court upheld the lower Board of Immigration Appeals (BIA) reasoning that the respondent should have known that there were problems regarding the offer of employment before he entered the US and further held that he was excludable under Section 212(a)(5) as he never had an intent to take up the certified job.

On the other hand, there are also a long line of decisions holding that as long as the noncitizen took up the job or reported for work, and then left later due to a change in intention (as a result of finding a more attractive job elsewhere), this individual could not be found excludable or deportable. In Matter of Cardoso, 13 I.&N. Dec. 228 (BIA 1969), the respondent, a Portuguese citizen, was sponsored to work for a Rhode Island employer as a braider tender. Upon reporting to the employer with his wife for work, the foreman indicated that there was a possibility that both would be laid off if they both worked for the employer. Based on the foreman’s well intentioned advice, who also stated that he would keep the braider tender job offer open, the respondent worked elsewhere first as a shoe lace tipper and then as a bobbin machine operator. The BIA held that it could not impugn the validity of such an admission where a person reported for work and did not take up the job under the circumstances described above or if the person worked for some time with the certified employer but quit because he did not like the work or found a better job elsewhere. See also Matter of Marcoux, 12 I.&N. Dec. 827 (BIA 1968) (respondent who left certified trainee weaver job after 5 days for a fiber glass repairer job because he did not like the former job was not found to be deportable because he still had a valid certification at time of entry).

Yet, INA Section 204(j), enacted by Congress in 2000 through the American Competitiveness in the 21st Century Act (“AC21”), provides job portability by leaving intact a labor certification or an employment-based I-140 petition when the I-485 adjustment of status application has been pending for 180 days or longer even if the noncitizen changes jobs provided it is in the “same or similar occupational classification” as the job described in the I-140 petition. AC21 turned the prior law topsy turvey in a positive way by allowing  noncitizens under special circumstances to change their intent even prior to obtaining permanent residence.

Section 204(j), thus, overrides prior law that required a noncitizen to have a bona fide intent to work for the employer who sponsored him or her. Section 204(j) is known as “portability” as it allows an I-485 applicant whose application has been pending for 180 days or more to change jobs within the same employer or even change employers provided it is in the same or similar occupation. 8 CFR Section 240.25(a), which was promulgated on January 17, 2017,  states that the applicant may affirmatively demonstrate to USCIS on Form I-485 Supplement J that  either the job offer by the petitioning employer is continuing or that the applicant has a new offer of employment through the same employer or a different employer, or through self-employment, in the same or similar occupational classification as the employment offered under the I-140 petition. Although 8 CFR Section 240.25(a) does not make it mandatory to submit an I-485J, the instructions on the form make it mandatory to submit the I-485J thus incorporating it  into the regulation (although incorporation of form instructions into a regulation without notice and comment make them vulnerable to court challenge under the Administrative Procedures Act).

Thus, if an applicant legitimately ports under a pending I-485 application, his or her intent to work for the sponsoring employer is no longer relevant. If on the other hand, the noncitizen did not have an offer to work in a same or similar job under Section 204(j), and the I-485 application is is approved, it does not appear that the applicant can exercise portability upon the acquisition of permanent residence. At this point, upon the approval of the I-485 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 is not an option. Section 204(j) portability thus seems to put those in a favorable situation prior to the successful adjudication of the I-485 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, as explained in a prior 2009 blog,  thus favors the person who was able to demonstrate a job offer in a same or similar job before adjudication of the I-485 application and not after. Of course, this is unfair for an applicant who has waited several years and worked for the same employer only to be required to work for the same employer after lawful permanent residency is granted.  Furthermore, Section 204(j) only benefits an I-485 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.

There are thousands of beneficiaries of EB-2 and EB-3 petitions whose I-485 applications have been pending even though the priority date of the I-140 petition under the Final Action Date in the State Department Visa Bulletin has become current. These applicants may also desire to change jobs either with the same employer or with a different employer in a same or similar occupational classification. If they are in the process of preparing and submitting I-485Js, and the USCIS approves the I-485 application, this applicant’s green card should not get jeopardized only because the I-485J was not received before the USCIS approved the I-485 application but they otherwise had job offers in a same or similar occupational classification. It does not make sense for this applicant to go back to the old job, which may not exist.  It is also  not good policy to rescind permanent residency only because the I-485J was not submitted before the I-485 application was approved. The USCIS should still be able to determine if the applicant ported under Section 204(j) based on other facts and circumstances even in the absence of the I-485J.

At this point, there is fortunately no anecdotal evidence that USCIS is initiating rescission proceedings if  permanent residency was granted prior to the receipt of the I-485J. However, naturalization examiners have been known to question applicants if they did not take up the position that was the subject of the I-140 petition. If there has been an allegation that the applicant did not properly receive permanent residency, it has been possible to convince a naturalization examiner that the applicant changed to a job in a same or similar occupational classification and thus was properly granted permanent residence. It has also been demonstrated that the I-485J was only issued on January 17, 2017 and so there was no notification requirement prior to that date. However, those who file for naturalization in 2022 will not be able to argue that there was no notification requirement in the 5 years preceding the filing of the application as the I-485J has been in existence for the past 5 years. If such a person did not file the I-485J, the naturalization application should not be denied on the ground that the applicant was not properly admitted as a permanent resident 5 years ago. This person should be  able to demonstrate on a case by case basis that the new job was in a same or similar occupational classification even if the I-485J was not submitted or acknowledged prior to the approval of the I-485 application.

A simple edit to the USCIS  policy manual would resolve this issue and put to bed any anxiety:

In any situation where a Supplement J was not approved or filed before the adjustment of status was granted, USCIS shall not rescind, nor shall it initiate removal proceedings to revoke, the legal permanent residence of any applicant who used section 204(j) so long as the new job was, in fact, in a same or similar occupation as the job for which USCIS approved the I-140. Where the requirement of a same or similar occupation is met, but no Form I-485 Supplement J was filed, USCIS shall consider an applicant for naturalization to have been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of law, for purposes of section 318 of the INA, notwithstanding the absence of the Supplement J.

This would be consistent with Section 204(j) as well as USCIS’s own regulation at 8 CFR § 245.25(a) that does not make the I-485J mandatory. The failure to file an I-485J should not jeopardize permanent resident status if an applicant ports to a new job so long it can be determined that it is in a same or similar occupational classification. The I-485J should not be the only vehicle for an I-485 applicant to express portability as it would be absurd if USCIS approves the I-485 application one minute before the I-485J is received at USCIS and thwarts one’s ability to port under INA 204(j). The I-485J was designed to provide a way for the applicant to notify the USCIS about portability, but it should not be mandatory, and ought not create peril and anxiety for the applicant. Now USCIS has also decided that filing I-485J is required with an interfiling request and this affects portability eligibility by starting the 180 day clock even though the I-485 has been pending for over 180 days. This is a ghost filing that is not supported in the INA or 8 CFR!

Congress did not intend to put  an applicant in a worse off position as applicants who filed their I-485Js prior to the  adjudication of the I-485 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, 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 the entire purpose of AC21 was to provide relief to professional and skilled workers who are in the US here but caught in the green card backlogs. While the example of the grant of permanent residency without the submission of the I-485J starkly demonstrates the absurdity of the disparity when the person clearly had a job offer in a same or similar occupational classification, the same benefit should broadly apply to persons who got the green card after an endless wait as I-485 applicants but changed their intention after receiving it. It makes no sense to allow portability while the applicant is the subject of an I-485 application that has been pending for 180 or more days, but then restrict this benefit to one who obtains permanent residency and receives a job offer in a same or similar occupation shortly thereafter.

 

 

 

 

 

 

 

David Isaacson

The Opportunity to Be Heard: Why New DHS Proposed Regulations Regarding I-140 Petitions Should Incorporate and Expand Upon the Rule of Mantena v. Johnson

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As discussed in a previous post on this blog by Cyrus D. Mehta, DHS recently promulgated a proposed rule entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers”. One of the key aspects of this proposed rule, which as discussed in Cyrus’s blog post has disappointed many with its narrowness in various respects, relates to the status of I-140 petitions which a petitioning employer may cease to support. For the reasons I will explain, this aspect of the proposed rule, too, does not go far enough.

The proposed rule will make clear through amendments to 8 CFR 204.5(e)(2) that an I-140 petition will continue to confer a priority date unless it is revoked because of fraud or willful misrepresentation, invalidation or revocation of the underlying labor certification, or “A determination by USCIS that petition approval was in error”, as proposed 8 CFR 204.5(e)(2)(iv) states. Even an I-140 petition that is withdrawn, for example, would continue to confer its priority date on all subsequent petitions filed for that beneficiary. In addition, withdrawal of the I-140 petition by the petitioning employer, or termination of the employer’s business, would only lead to revocation of the petition, per proposed 8 CFR 205.1(a)(3)(iii)(C) and (D), if such withdrawal or termination were to occur less than 180 days after approval of the I-140 petition. Otherwise, in the face of a withdrawal or termination of the employer’s business after those 180 days had passed, the petition would remain valid indefinitely. Thus, even a petition which an employer tries to withdraw after 180 days have passed could, under the proposed rule, be used as the basis for portability under INA §204(j) as enacted by the American Competitiveness in the 21st Century Act (“AC21”), which, as discussed in numerous previous posts on this blog, provides the ability to proceed with employment-based adjustment based on a different job offer to that which underlay the I-140 so long as it is in a same or similar occupation and the adjustment application has been pending for 180 days.

While these provisions provide some insurance against a petitioning employer deliberately or inadvertently undermining §204(j) portability, however, they do not go far enough to accomplish that aim. It appears from the proposed rule that in making its determination whether “petition approval was in error”, to quote again from proposed 8 CFR 204.5(e)(2)(iv), and so should no longer confer a priority date, USCIS would look to the I-140 petitioner for further information, even though that petitioner might lack any interest in providing it. Similarly, the rules regarding revocation of an I-140 petition on notice have not been changed by the proposed rule, and presumably would again involve notice to the petitioner. A hostile petitioner who would have wished to withdraw a petition, or a petitioner which had innocently gone out of business, could give rise to a revocation by failing to respond to notice from USCIS, and in so doing undermine the exercise of §204(j) portability.

This is not merely a theoretical concern. A recent precedential opinion of the U.S. Court of Appeals for the Second Circuit, Mantena v. Johnson, 809 F.3d 721 (2d Cir. 2015), published on December 30, 2015, demonstrates how this problem can arise under the current regulations.

The plaintiff in Mantena had been the beneficiary of an I-140 petition filed by Vision Systems Group (VSG). Roughly two years after filing her I-485 application for adjustment of status in July 2007, she sent a letter to USCIS requesting to exercise portability and substitute as a successor employer CNC Consulting, Inc. Nearly a year after that, the president of VSG pled guilty to mail fraud in connection with a different petition, which led USCIS to believe that all VSG petitions might be fraudulent. USCIS therefore sent Notices of Intent to Revoke (NOIRs) regarding, it appears, many or all VSG I-140 petitions, including Mantena’s. The NOIR for Mantena’s petition went unanswered – possibly because Mantena had, at that point, not worked for VSG in three years – so USCIS revoked the I-140 petition and then denied Mantena’s I-485.

Following repeated attempts to resolve the issue by filing motions, Mantena brought a lawsuit in the U.S. District Court for the Southern District of New York, claiming that the revocation of the I-140 petition and subsequent denial of her I-485 had violated the relevant regulations and deprived her of constitutionally protected due process rights. The district court ruled against her, but on appeal the Second Circuit ruled that USCIS had been required to notify either Mantena, or possibly her successor employer CNC, of the NOIR.

Under the INA as amended by AC21, the Second Circuit found, USCIS could not, when it was contemplating revocation of an I-140, notify only the former employer of an I-140 beneficiary who had already exercised portability to leave that employer. As the Second Circuit found,

By placing beneficiaries and successor employers in a position of either blind faith in the original petitioner’s goodwill and due diligence or a forced and continued relationship with the now-disinterested and perhaps antagonistic original petitioner, such a scheme would completely undermine the aims of job flexibility that those amendments sought to create.

Mantena, slip op. at 28-29. The Second Circuit in Mantena remanded to the district court for further consideration of whether the required notice should have gone to Mantena, CNC as her successor employer, or both, but held that in any event some such additional notice was required.

Mantena is not the first case to confront this sort of fact pattern. As discussed by Cyrus D. Mehta in his October 2015 post on this blog, “Don’t You Dare Yank My Precious I-140 Petition Without Telling Me!”, similar facts have been the subject of appellate decisions in the Ninth Circuit, Sixth Circuit, and Eleventh Circuit, as well as an ongoing appeal in the Seventh Circuit. The Second Circuit’s decision in Mantena does a particularly good job, however, of explaining why additional notice of proposed revocation of an I-140 petition is required.

USCIS has the opportunity, in the final revisions to its proposed rule, to clarify and expand upon this holding of Mantena. The final amended regulations should provide that when an I-140 petition has been approved for more than 180 days, or an I-485 based on an I-140 petition has been pending for more than 180 days, the beneficiary of the I-140 petition has the right to receive and respond to any notice regarding potential revocation of the I-140 petition. This will safeguard the job flexibility interests which, as the Second Circuit noted, the AC21 permanent portability provisions were designed to secure in the first place. And it will do so without unduly burdening successor employers, who may be willing only to hire their new employee but not to become too deeply enmeshed in the immigration paperwork and respond to notice regarding an I-140 petition.

Without the addition of Mantena’s rule, the current proposed regulations would leave I-140 beneficiaries “in a position of either blind faith in the original petitioner’s goodwill and due diligence or a forced and continued relationship with the now-disinterested and perhaps antagonistic original petitioner,” Mantena, slip op. at 28-29. A petitioner who is no longer interested, may no longer be in business, or may actively wish harm to the I-140 beneficiary, could quite likely fail to respond to an NOIR, leaving USCIS with the mistaken impression that a petition has been approved in error. This would, in those cases, destroy the benefits of stability that the proposed rule’s changes to 8 CFR 204.5(e)(2) and 8 CFR 205.1(a)(3)(iii)(C) and (D) are intended to produce.

Of course, as Mantena itself held, this sort of notice may in fact be mandated by the statute, whether USCIS explicitly mentions it in the regulations or not. But it would be much more efficient for USCIS to incorporate this notice into the express terms of the regulations, rather than leaving the details to the vagaries of case-by-case litigation in different circuits.

USCIS has, in the past, sometimes acquiesced by memorandum in the employment-immigration-related holding of a Court of Appeals. In a July 15, 2015, memorandum, for example, USCIS accepted the decision of the Third Circuit in Shalom Pentecostal Church v. Acting Secretary of DHS striking down regulatory provisions that required qualifying experience for an I-360 religious worker petition to have been gained in “lawful status”, which the Third Circuit had found to be ultra vires the statute. USCIS could take a similar route with regard to Mantena, which would be much better than nothing. But especially given that regulations on a related topic are being promulgated anyway, the best solution would be for a Mantena-style requirement of notice to an I-140 beneficiary to be incorporated into those new regulations.

As the Supreme Court has explained, “The fundamental requisite of due process of law is the opportunity to be heard.” Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). USCIS should amend the new proposed I-140 rules to provide this opportunity to I-140 beneficiaries.

Cyrus Mehta

Don’t You Dare Yank My Precious I-140 Petition Without Telling Me!

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The approved immigrant visa petition, Form I-140, is truly precious, especially when foreign nationals caught in the employment-based second and third preference backlogs have to wait for several years before they can get their green cards. The beneficiary of an I-140 petition can also “port” to a new employer after an I-485 adjustment of status application has been pending for 180 days. Once the beneficiary has ported and is no longer in contact with the former employer, the USCIS may discover that it improperly approved the I-140 petition and revoke it. Only the prior employer may get notification, which may no longer care to contest the grounds for revoking the I-140 or this employer may no longer even be in existence. The hapless foreign national who is enjoying job mobility under INA 204(j) does not know any better, but this individual may no longer be able to obtain permanent residency.

Should this foreign national beneficiary at least be notified about the I-140 being revoked and allowed to contest it? In 2009, the Ninth Circuit Court of Appeals in Herrera v. USCIS  answered in the negative by holding that the government’s authority to revoke an I-140 petition under INA 205 survived portability under INA 204(j). Since Herrera,  progress has been made in favor of the foreign national’s interest in the I-140 petition although it may have been filed by the employer. In 2014, the Eleventh Circuit Court of Appeals in  Kurupati v. USCIS held that a foreign national had standing notwithstanding the USCIS rule in 8 CFR 103.3(a)(1)(iii)(B) that precluded the beneficiary from challenging the revocation of an I-140.  The Kurupati court observed that the foreign national was clearly harmed as the revocation of the I-140 petition resulted in the denial of the I-485 adjustment application. The Court further observed that the notion of prudential standing, where a court may disregard standing based on prudence,  has been discredited by the Supreme Court in Lexmark International Inc. v. Static Control Components, which held that the correct question to ask is whether the plaintiffs “fall within the class of plaintiffs whom Congress has authorized to sue.” The Eleventh Circuit in Kurupati closely followed an earlier 2013 decision of the Sixth Circuit in Patel v. USCIS by holding that the beneficiary of an I-140 petition had standing because he or she suffered injury that was traceable to the USICS, namely, the loss of an opportunity to become a permanent resident. INA 203(b) makes the visa available directly to the immigrant, and not the employer, which suggests that Congress gave the beneficiary a stake in the outcome of the I-140. Moreover, after an I-140 is approved, the beneficiary can apply for permanent residency rather than a temporary status based on the employer’s need for the beneficiary’s services. Additionally, Congress also enacted INA 204(j) that allows the beneficiary to change jobs without starting the whole I-140 process all over again. Thus, under the question raised in Lexmark, Congress has authorized the beneficiary to challenge the denial of an I-140 petition, and thus this individual has standing without taking into consideration whether a court has discretion to allow it. This reasoning is further bolstered by INA 204(j), where the employer derives no further benefit from the employee’s benefit to port to a new employer.

Despite Kurupati and Patel, which gave standing to the beneficiary of an I-140 petition to challenge the revocation or denial, a federal district court in Musunuru v. Lynch, 81 F. Supp.3d 721 (2015) held to the contrary, that the beneficiary of an I-140 petition could not challenge the revocation of a prior I-140 as the applicable regulations only authorize the petitioning employer to be provided with notification and to challenge the revocation. The Musunuru Court also opined that unlike a non-citizen who is in removal proceedings and who would suffer a serious loss, and thus a right to be heard, an I-140 revocation does not cause the same loss. Obviously, the court’s reasoning is wrong as the denial of an I-140 petition results in the denial of the I-485 adjustment application, which in turn can place the beneficiary in removal proceedings. Fortunately, Law360 reported that this case is on appeal in the Seventh Circuit, and at oral argument, “Circuit Judge Rovner seemed baffled by the whole case, however, saying it doesn’t appear that Musunuru did anything wrong but was being punished for someone else’s mistakes.”

The prospect of the DHS promulgating a rule that would allow beneficiaries of an approved I-140 to apply for work authorization although they are not yet able to file I-1-485 applications should not diminish the beneficiary’s standing in case the I-140 is revoked. First, USCIS has authority under INA 274(a)(h)(3) to issue work authorization to any class of non-citizens.  While an I-140 petition anchored by an I-485 would strengthen the standing claim, there are old decisions that provided standing to the beneficiary of a labor certification, in the absence of a subsequent I-140 petition or an I-485 adjustment of status application. In Ramirez v. Reich,  the DC Circuit Court of Appeals recognized the non-citizen’s standing to sue, but then denied the appeal since the employer’s participation in the appeal of a labor certification denial was essential. While the holding in Ramirezwas contradictory, as it recognized the standing of the non-citizen but turned down the appeal due to the lack of participation of the employer,  the employer’s essentiality is obviated if the non-citizen is allowed to detach from the sponsoring employer under a rule granting work authorization  that replicates 204(j) portability, notwithstanding the lack of an I-485 application. Still, an even older 1984 case, Gladysz v. Donovan provides further  basis for non-citizen standing even if there is no pending I-485 application. In Gladysz, the non-citizen sought judicial review after the employer’s labor certification had been denied, rather than challenged his ability to seek administrative review, and the court agreed that the plaintiff had standing as he was within the zone of interests protected under the Administrative Procedures Act.

As courts are recognizing the non-citizen’s interest in an I-140, employers may want to think twice before withdrawing an already approved I-140 petition even after the employee has left. Unlike an H-1B petition, there is no sanction for the employer who does not withdraw the I-140 petition. The I-140 petition allows the non-citizen to seek an H-1B extension through another employer beyond the maximum sixth year under the American Competitiveness in the 21st Century Act. It also allows the priority date on that I-140 petition to be transferred to a subsequently filed petition, and provides a measure of protection for one who wishes to port under INA 204(j). Courts have also recognized that the I-140 petition enables the beneficiary to seek benefits independent of the employer who sponsored him or her, and thus providing greater rights to the foreign national beneficiary in the I-140 is a step in the right direction, especially when backlogs in the employment preferences have resulted in longer and longer waits for the coveted green card.

Cyrus Mehta

DO WE REALLY HAVE TO WAIT FOR GODOT?: A LEGAL BASIS FOR EARLY FILING OF AN ADJUSTMENT OF STATUS APPLICATION

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While the Obama administration is working on unveiling administrative fixes to reform the immigration system, we wish to revive one idea, which we discussed in The Tyranny of Priority Dates.  
We propose that aliens caught in the crushing employment-based (EB) or family-based (FB) backlogs could file an adjustment of status application, Form I-485, based on a broader definition of visa availability. It would promote efficiency, maximize transparency and enhance fundamental fairness by allowing someone to file an I-485 application sooner than many years later if all the conditions towards the green card have been fulfilled, such as labor certification and approval of the Form I-140, Form I-130 or Form I-526. We have also learned that the EB-5 for China has reached the cap, and there will be retrogression in the EB-5 in the same way that there has been retrogression in the EB-2 and EB-3 for India. Systemic visa retrogress retards economic growth, prevents family unity and frustrates individual ambition all for no obvious national purpose
Upon filing of an I-485 application, one can enjoy the benefits of “portability” under INA § 204(j) in some of the EB preferences and children who are turning 21 can gain the protection of the Child Status Protection Act if their age is frozen below 21. Moreover, the applicant, including derivative family members, can also obtain employment authorization.

We acknowledge that INA § 245(a)(3) only allows the filing of an I-485 application when the visa is “immediately available” to the applicant, and this would need a Congressional fix. What may be less well known, though no less important, is the fact that the INA itself offers no clue as to what “visa availability” means. While it has always been linked to the monthly State Department Visa Bulletin, this is not the only definition that can be employed. Therefore, we propose a way for USCIS to allow for an I-485 filing before the priority date becomes current, and still be faithful to § 245(a)(3).
The only regulation that defines visa availability is 8 C.F.R. § 245.1(g)(1), which provides:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current). An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

Under 8 C.F.R. § 245.1(g)(1), why must visa availability be based solely on whether one has a priority date on the waiting list which is earlier shown in the Visa Bulletin? Why can’t “immediately available” be re-defined based on a qualifying or provisional date? We are all so accustomed to paying obeisance to the holy grail of “priority date” that we understandably overlook the fact that this all-important gatekeeper is nowhere defined. Given the collapse of the priority date system, an organizing  principle that was never designed to accommodate the level of demand that we have now and will likely continue to experience,   all of us must get used to thinking of it more as a journey than a concrete point in time. The adjustment application would only be approved when the provisional date becomes current, but the new definition of immediately available visa can encompass a continuum: a provisional date that leads to a final date, which is only when the foreign national can be granted lawful permanent resident status but the provisional date will still allow a filing as both provisional and final dates will fall under the new regulatory definition of immediately available. During this period, the I-485 application is properly filed under INA §245(a)(3) through the new definition of immediately available through the qualifying or provisional date.

We acknowledge that certain categories like the India EB-3 may have no visa availability whatsoever. Still, the State Department can reserve one visa in the India EB-3 like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the alien beneficiary.   So long as there is one visa kept available, our proposal to allow for an I-485 filing through a provisional filing date would be consistent with INA §245(a)(3).
We propose the following amendments to 8 C.F.R. § 245.1(g)(1), shown here in bold, that would expand the definition of visa availability:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current) (“current priority date”). An immigrant visa is also considered available for provisional submission of the application Form I-485 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current priority date. An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

Once 8 C.F.R. § 245.1(g)(1) is amended to allow adjustment applications to be filed under INA § 245(a)(3), we propose similar amendments in the Department of State’s Foreign Affairs Manual to even the playing field for beneficiaries of approved I-140 and I-130 petitions who are outside the U.S. so as not to give those here who are eligible for adjustment of status an unfair advantage. Since the visa will not be valid when issued in the absence of a current priority date, it will be necessary for USCIS to parole such visa applicants in to the United States. The authors suggest the insertion of the following sentence, shown here in bold and deletion of another sentence, in 9 Foreign Affairs Manual (FAM) 42.55 PN 1.1, as follows:

9 FAM 42.55 PN1.1 Qualifying Dates

“Qualifying dates” are established by the Department to ensure that applicants will not be officially informed of requisite supporting documentation requirements prematurely, i.e., prior to the time that the availability of a visa number within a reasonable period can be foreseen. Therefore, post or National Visa Center (NVC) will not officially and proactively notify applicants of additional processing requirements unless the qualifying date set by the Department (CA/VO/F/I) encompasses the alien’s priority date. Otherwise, it is likely that some documents would be out-of date by the time a visa number is available and delay in final action would result. An immigrant visa is also considered available for provisional submission of the immigrant visa application on Form DS 230 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Issuance of the immigrant visa for the appropriate category only occurs when there is a current priority date. Nevertheless, should an applicant or agent request information concerning additional processing requirements, this information may be provided at any time with a warning that some documents may expire if obtained too early in the process.

We believe our proposal would not be creating new visa categories, but simply allowing those who are already on the pathway to permanent residence, but hindered by the crushing priority date backlogs, to apply for adjustment of status or be paroled into the U.S.  Another proposal is to allow the beneficiary of an approved I-140 to remain in the United States, and grant him or her an employment authorization document (EAD) if working in the same or similar occupation. While such a proposal allows one to avoid redefining visa availability in order to file an I-485 application, as we have suggested, we do not believe that a stand- alone I-140 petition can allow for portability under INA §204(j). Portability can only be exercised if there is an accompanying I-485 application. Still, at the same time, the government has authority to grant open market EADs to any category of aliens pursuant to INA §274A(h)(3). Under the broad authority that the government has to issue EADs pursuant to §274A(h)(3), the validity of the underlying labor certification would no longer be relevant.

Our colleague David Isaacson suggests a blunter approach, which would avoid any regulatory amendments. The Department of State could similarly allow filing of adjustment applications by applicants with priority dates for which no visa number was realistically available, at any time it chose to do so, simply by declaring the relevant categories “current” in the Visa Bulletin as it did for July 2007. The most efficient time to do this would be in September, at the end of each fiscal year, when the measure could also be justified as a way to ensure that any remaining visa numbers for that fiscal year did not go unused. The Visa Bulletin cut-off dates for the rest of the fiscal year could theoretically then proceed normally, with dates for each October following naturally from whatever the dates had been in the August two months before.
Finally, we also urge  serious consideration of our other proposal for not counting derivatives as a way to relieve the pressure in the EB and FB backlogs, and refer you to our blog entitled, Two Aces Up President Obama’s Sleeve To Achieve Immigration Reform Without Congress – Not Counting Family Members And Parole In Place, https://blog.cyrusmehta.com/2014/06/two-aces-up-president-obamas-sleeve-to_29.html.
The fundamental point is that priority dates should be a way of controlling not preventing permanent migration to the United States.  The very notion of a priority date suggests a realistic possibility of acquiring lawful permanent resident status. That is no longer the case for many immigrants in waiting. For this reason, since Congress will not act, the President must step forward. Now is the time.