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        goal of AC21. Such a policy would in signifi-  INA § 204(j). Even if the employer does not   son, 809 F.2d 721 (2015)  and Kurupati v.   denial when courts have explicitly held that
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        cant part defeat the aim to allow individuals   participate, a beneficiary should be allowed   USCIS, 775 F.3d 1255 (2014). As stated in   they  can  do  so.  The  beneficiary  may  also
        the ability to change jobs and benefit from   to respond to the RFE in order to establish   Khedkar v. USCIS, this logic should now   need to know the job description in the la-
        INA 204(j) so long as their associated ap-  that the I-140 was approvable when it was   extend to the ability of a foreign national   bor certification to port to a same or similar
        plication for adjustment of status has been   filed  concurrently  with  an  I-485  applica-  beneficiary of an I-140 petition to be able   job under INA § 204(j). They may also need
        pending for 180 days or more.     tion.  Such an extension of the holding of   to respond to an RFE even before it gets   the approval notice of the I-140 petition for
            In a perfect world, a beneficiary ought   Matter of V-S-G- would also be in line with   denied, especially since 8 CFR § 245.25(a)  purposes of obtaining a three-year H-1B
        to be able to work with a petitioner for   the Supreme Court’s decision in Lexmark   (2)(ii)(B)(2) permits the beneficiary to port   extension under § 104(c) of the American
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        the purpose of responding to any RFE or   Int’l Inc. v. Static Control Components,   based on a concurrently filed unadjudicated   Competitiveness in the 21st Century Act.
        NOIR issued on a previously filed I-140 and   which held that a plaintiff has the ability   I-140  petition  and  I-485  application.  This   Moreover, they may also need to know the
        I-485 despite the petitioner’s lack of inten-  to sue under the Administrative Procedure   regulation, which was promulgated consis-  priority date of this I-140 petition in case a
        tion to continue to employ the beneficiary.   Act when his or her claim is within the zone   tent with Lexmark, will carry little force if   new employer will file a new I-140 petition
        However, as a practical matter, a petition-  of interests a statute or regulation protects.   the beneficiary is not considered an affect-  on their behalf.  Khedkar v. USCIS and oth-
        ing employer is likely to refuse to cooper-  Other courts have agreed that the original   ed party in order to challenge both an RFE   er cases have affirmed the strong interest
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        ate with a beneficiary who has already been   employer should not be the exclusive par-  and a denial.  that the beneficiary who has ported under
        terminated. Nonetheless, there exists a   ty receiving notice relating to an I-140 pe-  Finally, employers and their attorneys   INA 204(j) has in an I-140 petition even if
        compelling  argument  that  the  beneficiary   tition when the foreign national employee   who are reluctant to share a decision involv-  it was initiated and filed by the employer.
        be allowed to respond due to the growing   has ported to a new employer. Beneficia-  ing  an  I-140  petition  with  the  beneficiary
        legal recognition of a beneficiary’s interest   ries who have ported to new employers fall   especially after they have ported should rec-  (This blog is for informational purposes and should
        in an I-140 approval where there is also a   within INA § 204(j)’s zone of interests and   ognize that the beneficiary has an interest   not be viewed as a substitute for legal advice).
        pending I-485.  Although Matter of V-S-G-,   have standing to participate in visa revo-  in the I-140 petition and would be deprived   *Kaitlyn Box is a Senior Associate at Cyrus D.
        Inc. dealt with the issue of a NOIR of an ap-  cation proceedings. See Mantena v. John-  in responding to a request for evidence or a   Mehta & Partners PLLC.
        proved I-140 petition, it would be consistent   _________________________________________________________________________________________________________
        with the holding to argue that if a beneficia-                                  Start Watching IndiaLife TV  24 Hours LIVE
        ry is able to successfully port to a new em-  Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
        ployer prior to the issuance of an RFE, that   Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
        beneficiary is also an “affected party” due to   mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
        her interest in demonstrating that the I-140   Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
        was approvable as filed.  USCIS ought to
        extend the holding in Matter of V-S-G- to   of Volunteers for Legal Services and board member of New York Immigration Coalition.  Mr. Mehta is the former chair of the
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        any beneficiary who successfully ports while   Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
        the underlying I-140 remains unadjudi-  Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
        cated  and  was  filed  concurrently  with  an   on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
        I-485  application.  This  has  been  affirmed   Work.  Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
        in Khedkar which remains an unpublished   and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
        decision.  Such an extension would go a
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        long way towards fulfilling one of the pri-  immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016.  Mr. Mehta is ranked among
        mary goals of AC21 by allowing individuals   the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
        the ability to change jobs and benefit from  in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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