Changing Jobs While the I-485 is Pending & Notice of USCIS' Denial or Revocation of the I-140

Changing Jobs While the I-485 is pending, and Notice of USCIS’ Denial or Revocation of the I-140. Have you changed jobs, “ported” from your sponsoring employer to a new employer, while your I-485 adjustment to permanent residency is pending?? If USCIS sends an Request for Evidence (RFE) of the I-140 which is still pending, or if the I-140 is already approved, a Notice of Intent to Revoke (NOIR) the I-140, USCIS is obligated to send the notice to the beneficiary employee as well as employer, as the employee/beneficiary is an affected party under the statute, the INA.

?According to the statute, 8 USC 1154(j), the portability provision, the I-140 petition “shall remain valid” to support the permanent residency application even if the beneficiary changes jobs as long as: 1) the Form I-485 adjustment application has been pending for 180 days or more; and 2) the new job “is in the same or similar occupational classification” as the position in the I-140 petition through the first employer. This provision was intended to provide job flexibility to immigrant employees whose priority dates have retrogressed since filing the I-485 or whose cases have just been pending for a very long time.

?USCIS requires both the second employer and the employee to file a Form I-485 J Supplement to inform USCIS of the beneficiary employee’s change in employers and jobs.

?In Mantena v Johnson, 809 F.3d 721 (2d Cir. 2015), the plaintiff, Mantena, had an approved I-140 and a pending I-485 adjustment, and had ported to a new job with a second employer. Unbeknownst to her and to the second employer, USCIS sent a Notice of Intent to Revoke NOIR regarding the I-140 to the prior employer, who never responded, and then a revocation of the previously approved I-140 also to the prior employer, and denied Mantena’s I-485 adjustment application since the I-140 it depended upon had been revoked.?

?Mantena filed in federal court to challenge USCIS’s lack of notice to her, and the Government filed a motion to dismiss for lack of subject matter jurisdiction.? The Second Circuit found that: “Mantena's case illustrates the importance of notifying affected parties of material changes in their proceedings and statuses and of giving them an opportunity to respond. This is true for any legal proceeding, but is a particular and continuing concern for immigrants throughout the multistep administrative process.” Id. The court held that 8 USC 1252(a)(2)(B)(ii), the INA’s jurisdiction-stripping provision, while it applies to discretionary decisions, does not apply to procedural challenges. The Second Circuit found that USCIS violated its own regulations by not providing sufficient notice of revocation to the first employer/I-140 petitioner, and improperly failed to give notice of the revocation to either the beneficiary employee or the second employer.

Importantly, the Second Circuit held that the beneficiary employee fell within the zone of interests of the statute and had standing to bring a case in federal court.?? See also, Musunuru v. Lynch, 831 F.3d 880 (7th Cir. 2015). The Second Circuit did not decide whether it was the immigrant employee or the successor employer who should be provided notice of revocation, but at least one and possibly both.

?Similarly, in Khedkar v. USCIS, Civ. 20-1510-RC (DDC Aug 5,? 2021), the DDC held that the beneficiary employee who attempts to port should be a party to I-140 petition proceedings, at least where it is an EB-1 multinational manager or executive petition. ?Khedkar had an I-140 and I-485 pending for more than 180 days, and then used the portability provision to change jobs twice, filing the Form I-485 Supplement J.? USCIS sent an RFE (Request for Evidence) regarding the I-140 to the first employer who was the I-140 petitioner, but not to the current employer nor to Khedkar. The DDC found that Khedkar was arguably within the zone of interests to be protected or regulated by the statute, according to Lexmark Int’l Inc., v. Static Control Components, Inc., 572 US 118, 126-127 (2014). Due to the portability provision, the immigrant employees and the successor employers are the only parties who still have an interest in the I-140.

?Citing Mantena and Musunuru, the DDC explained:

“Before the portability provision came along, an I-140 beneficiary was stuck with his petitioning employer… Due to the limited number of available permanent residency visas, he could be trapped for years…Still, the beneficiary's forced relationship with his petitioning employer "also meant that notice to the original employer would adequately serve to inform the alien employee."…Congress enacted the portability provision to sever that forced relationship…The provision thus provided job flexibility that would benefit employees and employers alike. Immigrant employees could leave their jobs without jeopardizing a chance at permanent residency…And employers could more easily hire talented foreign workers by relying on a prior employer's immigration filings instead of starting the whole process over from scratch…the beneficiary's new employer "had a vested interest in the petition's validity" because it "depended on" that original petition to employ the beneficiary…” Khedkar at 8-9 (Citations omitted).

The Mantena litigation had a positive outcome, at least for I-140 revocation proceedings, as USCIS changed its policy, issuing a November 11, 2017 Policy Memorandum, PM-602-0149 stating:

“beneficiaries of valid employment-based immigrant visa petitions who are eligible to change jobs or employers (“port”) and who have properly requested to do so under section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j), are “affected parties” under DHS regulations for purposes of revocation proceedings of their visa petitions and must be afforded an opportunity to participate in those proceedings. Other kinds of visa petition beneficiaries, and the subsequent employers of beneficiaries who have ported or sought to port, are not affected parties under DHS regulations and may not participate in visa revocation proceedings.”?

While Khedkar involved a still-pending I-140, as a practical matter, of course, it is better for the immigrant employee beneficiary to wait for the I-140 to be approved before trying to port to a new employer.

?Copyright 2024 ? Heidi J Meyers, all rights reserved. This article is for informational purposes only and is not meant as legal advice.

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