Page 30 - The Indian EYE 031723

IMMIGRATION MARCH 17, 2023 | The Indian Eye 30

Khedkar v. USCIS Affirms that Employee also has

Interest in an I-140 Petition filed by Employer

CYRUS D. MEHTA AND 2021), reiterated the idea that a agencies did not recognize Khed- I-140 was approvable when filed connection with another USCIS
KAITLYN BOX* beneficiary also has an interest in kar as an affected party. Khedkar pursuant to 8 CFR § 245.25(a)(2) petition. USCIS sent a notice of
the I-140 petition. Mr. Khedkar’s sought review under the Adminis- (ii)(B), and indicate that it has no intent to revoke (“NOIR”). When
ecause an employ- employer, Deloitte, had filed an trative Procedures Act in federal intention to permanently employ the petitioner failed to respond to
ment-based immigrant visa I-140 petition on his behalf clas- district court. The court agreed the beneficiary, so that a benefi- the NOIR, USCIS revoked the
Bpetition, or Form I-140, is sifying him as a multinational with Khedkar that USCIS should ciary may exercise job portability petitioner’s approval due to the
filed by an employer on behalf of manager under INA § 203(b)(C), have issued the RFE to Khedkar based on her pending I-485. Our petitioner’s failure to respond.
a foreign national employee who while Khedkar concurrently filed rather than Deloitte after he pro- firm had success in such a situ- Although Matter of V-S-G-, Inc.
is being sponsored for permanent an adjustment of status applica- vided notification to the USCIS ation wherein a beneficiary of a dealt with the issue of an NOIR
residency, there is sometimes a tion. Khedkar then joined another about his porting through I-485 previously filed I-140 and I-485 of an approved I-140 petition, one
perception that both the I-140 employer, Alpha Net Consulting Supplement J. “The result is not was able to work with a petitioner could argue that the AAO should
petition and the underlying labor LLC, in a similar position and only at odds with the portability to respond to an RFE even though extend the holding in Matter of
certification belong to the em- filed an I-485 Supplement J to provision’s aim of encouraging the beneficiary would not be em- V-S-G- to a Beneficiary who suc-
ployer. They are initiated by the notify USICS that he was port- job flexibility — it is unfair too,” ployed permanently and had ex- cessfully ports to a new employer
employer on behalf of the non- ing to a similar job. The USCIS Judge Contreras said. pressed an intention to port to a while the underlying I-140 re-
citizen employee or prospective issued a Request for Evidence The court’s decision in new job in the same occupation- mains unadjudicated. This is be-
employee who is referred to as the but Khedkar’s former employer, Khedkar v. USCIS is in keeping al classification. After the I-140 cause upon the filing of an I-485,
beneficiary. The I-140 petition is Deloitte, was not interested in with a growing understanding that had been erroneously denied on Supplement J – required when the
signed by the employer. Although responding after he had left the beneficiaries also have a legal in- grounds not related to the lack of beneficiary ports or intends to port
one part of the labor certification company. Khedkar then joined terest in I-140 petitions as we also permanent employment, our firm to a job in a same or similar occu-
is signed by the beneficiary, the IBM and filed another I-485J. observed in a prior blog. Current assisted the beneficiary in success- pational classification – the bene-
employer still drives the labor cer- Khedkar did not realize that the regulations generally preclude fully reopening the I-140 with the ficiary becomes an “affected par-
tification process and files the ap- USCIS had sent an RFE to De- beneficiaries from participating cooperation of the petitioner, and ty,” and should be given a copy of
plication. It is the employer who loitte, which was not responded in employment-based immi- ultimately winning approval of the any RFE, as well as a copy of any
also has the unilateral power to to. The USCIS denied the I-140 grant visa proceedings, including I-140 and approval of the I-485 for subsequent denial of her I-140.
withdraw the labor certification or petition for failure to respond to post-adjudication motions and the beneficiary. The argument for extending Mat-
I-140 petition. the I-140 petition. Khedkar filed appeals. But this changes when a The question remains, how- ter of V-S-G is further supported
However, a recent U.S. a motion to reopen with USCIS beneficiary exercises her right to ever, what recourse does a benefi- by the promulgation of 8 CFR §
District Court case, Khedkar v. and then an appeal to the Admin- job portability pursuant to INA ciary have if the petitioner refuses 245.25(a)(2)(ii)(B), which enables
USCIS, 552 F. Supp. 3d 1 (DDC istrative Appeals Office, but both §204(j) and 8 CFR § 245.25(a) to respond to an RFE, or other- the I-140 to be approved even
(2)(ii)(B). If a Request for wise cooperate with the beneficia- if a job offer no longer exists so
Evidence (RFE) is subse- ry? May a beneficiary, for exam- long as the I-140 was eligible for
quently issued on the un- ple, file an I-290B notice of appeal approval at the time of filing. See
derlying I-140, the benefi- or motion to reopen a subsequent 8 CFR § 245.25(a)(2)(ii)(B)(2).
ciary may be entitled to this denial of the I-140? A review of the preamble to
RFE as they may be able The answer may be found 8 CFR § 245.25 published in the
to respond to it even if the under existing USCIS policy. Federal Register, while not dispos-
employer chooses not to. Under the Policy Memo promul- itive, also supports this position.
INA §204(j) allows for- gated on November 11, 2017, a The preamble notes that several
eign workers who are being Beneficiary becomes an “affected commentators had expressed con-
petitioned for permanent party” upon USCIS’ favorable de- cern that individual beneficiaries of
residence by their employ- termination that the beneficiary is Form I-140s are not provided no-
er to change jobs once their eligible to port. See USCIS, Guid- tice when USCIS seeks to revoke
I-485 adjustment of status ance on Notice to, and Standing the approval of those petitions. In
application has been pend- for, AC21 Beneficiaries about response, DHS noted that it was
ing for 180 days or more. Fur- I-140 Approvals Being Revoked considering administrative action
thermore, 8 CFR § 245.25(a) After Matter of V-S-G- Inc., PM- to address these concerns. See
(2)(ii)(B) allows a beneficia- 602-0152, Nov. 11, 2017 at page 5. Federal Register /Vol. 81, No. 223
ry to port to a new employer Thus, under the policy adopted by /Friday, November 18, 2016 /Rules
based on an unadjudicated USCIS in Matter of V-S-G- Inc., and Regulations at page 82418
I-140, filed concurrently with Adopted Decision 2017-06 (AAO (hereinafter the “preamble”).
an I-485 application, so long Nov. 11, 2017), beneficiaries, who Similar concerns were also raised
as it is approvable at the time are affected parties as defined in in the preamble in the section
of filing. the Matter of V-S-G- Inc. deci- entitled “Portability Under INA
Even if a petitioner de- sion, are entitled to a copy of any 204(j)” wherein the DHS states:
cides not to employ a bene- decision made by USCIS and may As a practical matter, peti-
m of ficiary after the filing of an file an appeal or motion on Form tioners have diminished incentives
CYRUS D. MEHTA & PARTNERS PLLC I-140 and I-485, this does I-290B with respect to a revoked to address inquiries regarding
not preclude a petitioner
qualifying Form I-140 petitions
Form I-140, even though existing
from responding to an RFE form instructions generally pre- once beneficiaries have a new job

issued on the underlying clude beneficiary filings. offer that may qualify for INA
I-140 for a beneficiary who In Matter of V-S-G- Inc., 104(j) portability […] Accord-

  has already ported or who which we have discussed at length ingly, denying a qualifying Form
   
­ may port in the near future. in a prior blog, the beneficiary had I-140 petition for either ability
€
‚   This is because this inten- changed employers and taken a to pay issues that occur after the
tion – which is to no longer new position after the adjustment time of filing, or for other petition
employ the beneficiary – was of status application had been eligibility issues that transpire af-
pending for more than 180 days.
ter the associated application for
formed after the filing of the
I-140 and I-485. Therefore, Meanwhile, the president of their adjustment of status has been
2 6th Floor a petitioning employer may original petitioning organization pending for 180 days or more,

    still seek to establish that the was convicted of mail fraud in would be contrary to the primary
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