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IMMIGRATION SEPTEMBER 01, 2023 | The Indian Eye 43

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from anywhere in the U.S., the employ- from home policy. Alternatively, the the I-140 petition is already approved, takes to obtain labor certifications,
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er arguably made the position more employer is only obligated to offer the the employer could again go with the as- starting again when there is a change
restrictive as qualified U.S. applicants position in accordance with the terms sumption that the underlying labor cer- in a work from home policy can be very
may have not applied to the position of the labor certification upon the grant tification is valid despite the change in burdensome especially when the foreign
due to the location of the employer’s of permanent residence. See Matter of work from home policy and perhaps ex- worker is running out of H-1B time. Our
office or HQ, though they would have Rajah, 25 I&N Dec. 127 (BIA 2009). plain in the letter in support the I-485 or blog provides a legal basis for keeping
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applied if telecommuting was allowed. Thus, even if the work from home pol- in the I-485J supplement, whichever is the labor certification in intact when
Still, we would argue that the employer’s icies have currently changed, but the applicable. When there is doubt regard- there is a change in work from home
telecommuting change after the labor employer still wishes to offer the job in ing the validity of the labor certification policies, and making full disclosure
certification should not invalidate the accordance with the labor certification, due to changes in work from home pol- when submitting the subsequent I-140
labor certification. The Barbara Farmer then there is no need for any further jus- icies, and the I-140 is already approved, petition and I-485 application.
Memo made clear that the employer’s tification. Assuming that the employer the employer can file a new labor certi- should not be relied upon as substitute for legal
(This blog is for informational purposes and
various locations throughout the U.S. approval after full disclosure has been 8 CFR § 204.5(e)(1).ogin|Register with your eMail then
L
main or HQ office should be indicated does not intend to offer the position per fication and upon approval of the labor
the labor certification upon the grant of certification, file an I-140 petition and
as the worksite when a job opportuni-
advice)
ty will require a beneficiary to work in permanent residence, obtaining an I-140 recapture the earlier priority date under
*Jessica Paszko is an Associate at Cyrus D. Me-
that cannot be anticipated. That HQ made would be the ideal situation. If Given the extraordinary time it hta & Partners PLLC. She graduated with a
J.D. degree from Brooklyn Law School in 2021.
worksite in turn determines the course _________________________________________________________________________________________________________
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of the labor market test and where it is Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
to be conducted. The labor certification Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
should not be later deemed invalid just mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
because the employer changes its mind Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member of
as to whether or not telecommuting is
allowed as the labor market test is still Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the Board
valid since it was conducted in the area of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality Law of the
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of intended employment. New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on ethics, and
If the labor certification is approved is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta
but the I-140 petition still needs to be received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law and the AILA 2011
filed, it would behoove the employer to Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field. He has
provide a justification in the support let- also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded
on your browser and watch IndiaLife TV 24 Hours
ter to the I-140 that the labor certifica- lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and
tion is still valid despite a change in work Chambers Global 2019 in immigration law, among other rankings.

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