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IMMIGRATION MAY 24, 2024 | The Indian Eye 49

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bor certification was filed with DOL, based on an I-140 petition that was the position remained unchanged like India.
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could have affected the number or approved some years ago. Since the despite an evolution of some of the It is hoped that the USICS ap-
type of available U.S. workers who approval of the I-140 petition and specific duties, the I-140 petition was plies common sense and flexibility in
applied for the job opportunity. prior to filing the I-1485 application preserved and the employee’s adjust- agreeing that a labor certification and
However, an increase in the rate of after many years, the employee had ment of status application was ulti- corresponding I-140 petition do not
pay due to the passage of time does been promoted to a more senior job mately approved. get invalidated if there is a progres-
not affect the successor-in-interest title and had taken on some more It is unfair and impractical for an sion of the job so long as the essential
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claim.” managerial job duties. USCIS issued employer to file a new labor certifi- aspects of the job remain the same.
Extrapolating from the guidance a Notice of Intent to Revoke (NOIR) cation whenever there is job progres-
*Kaitlyn Box is a
provided in the successor in interest the I-140 petition, arguing that the sion due to the passage of time and Senior Associate at Cyrus D. Mehta
context, noncitizens workers whose position outlined in the I-140 petition technological change. Beneficiaries & Partners PLLC.
jobs have changed since the labor cer- was no longer a bona fide job offer of labor certifications also should
tification or I-140 approval can possi- given the progression of the role. not be bound by the same job for a [This blog is only for informational
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bly demonstrate that these changes After responding to the NOIR decade or longer solely because they purposes and should not be relied upon
would not have impacted the number and asserting that the substance of were born in a backlogged country as a substitute for legal advice].
or type of U.S. workers who applied _________________________________________________________________________________________________________
to the original job opportunity.
However, when there are job Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus
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changes outside INA 204(j) porta- D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task
bility largely due to technological Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics Committee; special counsel on immigration matters
changes, practitioners must vigor- to the Departmental Disciplinary Committee, Appellate Division, First Department, New York; member of the ABA
ously advocate that the essence of Commission on Immigration; board member of Volunteers for Legal Services and board member of New York Immi-
the position remains the same and
that a new labor certification is not gration Coalition. Mr. Mehta is the former chair of the Board of Trustees of the American Immigration Council and
requited. Our firm’s recent anecdotal former chair of the Committee on Immigration and Nationality Law of the New York City Bar Association. He is a
experience illustrates that challenges frequent speaker and writer on various immigration-related issues, including on ethics, and is also an adjunct profes-
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stemming from job changes after the sor of law at Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta received
approval of an I-140 petition can be the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law and the AILA
overcome if it is demonstrated that 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immi-
the essential duties of the position re-
main the same. gration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked
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We assisted an individual who among the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019
had applied for adjustment of status and is also ranked in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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