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IMMIGRATION MARCH 04, 2022 | The Indian Eye 43

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What happens, though, if an appli- job as the 180-day clock did not com- a beneficiary must be afforded an op- § 204(j) requires only that the I-485
cant checks Part 1.b. when the job du- plete when requesting the transfer of portunity to participate in such revoca- be pending for 180 days. Even if re-
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ties have changed slightly, even though underlying basis. The safest course of tion proceeding. If the 180 day porting questing a transfer of underlying basis
the essence of the job remains similar action for applicants in this scenario is clock were to start again upon an in- latches the I-485 to the EB-2 I-140, that
and s/he is with the same employer. It to refrain from requesting a transfer of terfiling request, that could de-recog- should not restart the portability clock.
makes little sense for the portability underlying basis. Thus, if the I-485 is nize the ability of a beneficiary to par- The transfer of basis should not be in-
clock to restart in this situation. Surely associated with the EB-3 I-140, then it ticipate in revocation proceedings in tertwined with I-485 portability.
USCIS would not expect an applicant is best to port and stay in EB-3 rather contradiction of a growing number of
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From Smar
to go back to the old job with the cur- than requesting a transfer of underly- court decisions, see e.g. Khedkar v US- (This blog is for informational purposes
rent employer if it were to approve the ing basis to be on the safe side. CIS, Mantena v. Johnson and Kurupati and should not be viewed as a substitute
I-485 application in less than 180 days Relevant case law also illustrates v USCIS, that have recognized that the for legal advice).
from the time thee request to transfer the absurdity of USCIS’ position. In beneficiary of the I-140 petition is with-
the underlying basis was made. Matter of VSG, Adopted Decision in the zone of interests that the statute JD from Penn State Law in 2020,
Other applicants who are request- 2017-06 (AAO Nov. 11, 2017), the or regulation seeks to protect. Such a
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ing a transfer of underlying basis may AAO recognized that a beneficiary result would be nonsensical. and is an Associate at Cyrus D. Mehta &
Partners PLLC.
want to move to a new job at an en- who has ported under INA §204(j) is All of these scenarios make little
tirely different employer. When one an affected party for purposes of re- sense. There should be no restarting of
is changing jobs and files the I-485J, vocation of an I-140 petition, and such the 180-day portability clock, as INA
and the underlying basis is not being _________________________________________________________________________________________________________
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changed, there should not be an issue. Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
The portability clock should not start
again. The I-485 has been pending Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
for 180 days already and INA § 204(j) mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
should trigger. Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
The situation becomes somewhat of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
more nuanced, however, when the Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
applicant also wants to port to a new Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
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job and transfer the underlying basis
from EB-3 to EB-2. USCIS seems to on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
suggest that the portability clock would Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
restart in this situation, but the results and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
would be perverse. Imagine the absurd immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
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scenario where USCIS approves the the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
I-485 within 180 days, and an appli- in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.
cant would have to go back to the old

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