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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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