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y 29, 2016
Laura Daawkins, Chieef, Regulatorry Coordinattion Divisionn
United States Citizen
nship and Im
mmigration Services
Office off Policy and Strategy
20 Massaachusetts Av
venue NW
gton, DC 205
RE: Retention of EB-1,
EB-2 and EB-3 Immigrant
Workers an
nd Program
m Improvem
g High-Skiilled Nonim
mmigrant Workers;
800 FR 819000 (12/31/155); Dockeet ID
Dear Ms. Dawkins:
The und
dersigned aree partners in Cyrus D. Mehta & PLLC (CDM
MP), whichh represents both
employerrs and emplloyees in no
nt visa petitioons, labor ccertificationss, immigrantt visa
petitions and adjustm
ment of statu
us application
ns. CDMP hhas first-handd experiencee with the m
issues that arise in reepresenting clients with respect to tthese matters, and thus pprovides sellected
commentts to the pro
oposed DHS
S rule entitled “Retentioon of EB-1,, EB-2 and EB-3 Immiigrant
Workers and Program
m Improvem
ments Affectiing High Skiilled Nonim
mmigrant Woorkers.” While we
omment on every aspecct of the pro
oposed rule, we endorsee the broadeer commentss that
do not co
have been submitted by the Alliaance of Busin
ness Immigrration Lawyeers (ABIL), www.abil.coom.
CDMP is part of AB
BIL, which is compriseed of 20 off the top U.S
S. business immigrationn law
firms, eaach led by a prominen
nt member of
o the U.S. immigrationn bar. ABIL
L member firms
employ over
250 atto
orneys (700+
+ total staff)
f) devoted too Business im
mmigration in 25 majorr U.S.
cities, plu
us 25 internaational citiess.
djustment Filing
Will Give
G Big Bo
oost to Delayyed Green C
Card Appliccants
Early Ad
Under the proposed rule,
DHS will
w provide EADs
to benneficiaries inn the United States on E--3, H1B, H-1
1B1, L-1 or O-1 no
onimmigrantt status iff they cann demonstraate “compeelling
circumstaances.” CDM
MP question
ns the need for
f the “com
mpelling circuumstances” requirementt, and
strongly advocates that
the final rule ough
ht to providde a broadeer basis for beneficiaries of
d I-140 petittions to obtaain EADs without
needding to show
w compellinng circumstaances.
INA 274A(h)(3) prov
vides broad authorization to the DHS
S to issue w
work authorizzation to anyy noncitizen. The
T ability fo
or the DHS to
t grant worrk authorizattion stems frrom INA Secction 274A(hh)(3),
which is the same staatutory provision under which
R 274a.12(cc)(9) was proomulgated, w
n EAD to a pending adjustment app
plicant. Therre is no simiilar compellling circumsstance
grants an
ment for adjustment app
plicant seek
king an EA
AD who is on the patth to permanent
y. Similarly
y, there is no need for an H--4 spouse to demonsttrate compeelling
circumstaances under the recently
y promulgateed rule that allows spouuses to applyy for EADs if the


H-1B spouse under certain circumstances has initiated the permanent residency process.1
Therefore, the need to also require compelling circumstances for the beneficiary of an approved
I-140 who is clearly eligible to obtain permanent residency, but for the priority date, is
unnecessary. Furthermore, the “compelling circumstances” requirement would not provide the
amelioration that the beneficiary of an approved I-140 petition caught in the crushing
employment-based backlogs needs to be able to exercise job mobility. DHS should also clarify
that applicants granted EADs may apply for advance parole so that they can travel.
If DHS retains a “compelling circumstance” requirement, DHS must clarify the circumstances
under which an applicant can seek renewal of the EAD. DHS allows a renewal if the applicant
continues to demonstrate compelling circumstances or that the difference between the principal
beneficiary’s priority date and the date upon which an immigrant visa is authorized is 1 year or
less. See proposed 8 CFR 204.5(p)(3)(i)(A) and (B). Yet, at proposed 8 CFR 204.5(p)(5)
relating to “[i]neligibility for employment authorization,” renewal of an EAD will not be
permitted if the principal beneficiary’s priority date is more than 1 year beyond the date beyond
the date that immigrant visas were authorized. This contradicts the earlier section in the proposed
rule, which allows a beneficiary to seek renewal if s/he continues to demonstrate compelling
circumstances, which is independent of whether the beneficiary’s priority date is within 1 year or
less of the official cut-off date. DHS must clarify that a renewal of an EAD may be sought if
either the beneficiary continues to demonstrate compelling circumstances or if the priority date is
within 1 year of the official cutoff date.
Notwithstanding the limited circumstances under which the DHS proposes to issue EADs to
beneficiaries of approved I-140 petitions, which has disappointed many beneficiaries of
approved I-140 petitions, the proposed rule could be salvaged if workers can file early I-485
adjustment of status applications. While the proposed rule has not touched upon this, the DHS
must revisit the innovation that was made in the October 2015 Visa Bulletin by creating a filing
date and a final adjudication date. Although the filing dates got substantially pulled back in the
EB-2 for India and China shortly before the new visa bulletin took effect on October 1, DHS can
still innovate through this rule, and propose addendum new rules, to truly benefit high skilled
INA 245(a)(3) allows for the filing of an I-485 application for adjustment of status when the visa
is “immediately available” to the applicant. The Department of State (DOS) has historically
never advanced priority dates based on certitude that a visa would actually be available. There
have been many instances when applicants have filed an I-485 application in a particular month,
only to later find that the dates have retrogressed. A good example is the April 2012 Visa
Bulletin, when the EB-2 cut-off dates for India and China were May 1, 2010. In the very next
May 2012 Visa Bulletin a month later, the EB-2 cut-off dates for India and China retrogressed to
August 15, 2007. If the DOS was absolutely certain that applicants born in India and China who
filed in April 2012 would receive their green cards, it would not have needed to retrogress dates




back to August 15, 2007. Indeed, those EB-2 applicants who filed their I-485 applications in
April 2012 are still waiting and have yet to receive their green cards even as of today! Another
example is when the DOS announced that the July 2007 Visa Bulletin for EB-2 and EB-3 would
become current. Hundreds of thousands filed during that period (which actually was the extended
period from July 17, 2007 to August 17, 2007). It was obvious that these applicants would not
receive their green cards during that time frame. The DOS then retrogressed the EB dates
substantially the following month, and those who filed under the India EB-3 in July-August
2007, also known as the class of 2007, are still waiting today.
These two examples, among many, go to show that “immediately available” in INA 245(a)(3),
according to the DOS, have never meant that visas were actually available to be issued to
applicants as soon as they filed. Rather, it has always been based on a notion of visa availability
at some point of time in the future. The Visa Bulletin in its new reincarnation, notwithstanding
the pulling back of the filing dates prior to October 1, 2015, now views it more broadly as “dates
for filing visa applications within a timeframe justifying immediate action in the application
process.”2 The USCIS similarly views visa availability opaquely as “eligible applicants” who
“are able to take one of the final steps in the process of becoming U.S. permanent
residents.”3 These new interpretations provide more flexibility for the State Department to move
the filing date even further, and make it closer to current. While it is acknowledge that certain
categories like the India EB-3 may have no visa availability whatsoever, DOS and DHS can
reserve one visa in the India EB-3 like the proverbial Thanksgiving turkey.4 Just like one turkey
every Thanksgiving is pardoned by the President and not consumed, similarly one visa can also
be left intact rather than consumed by the alien beneficiary. So long as there is one visa kept
available, the proposal to allow for an I-485 filing through a provisional filing date would be
consistent with INA §245(a)(3).
Cyrus Mehta has proposed the following amendments to 8 C.F.R. § 245.1(g)(1) in the past with
Gary Endelman (who has since become an Immigration Judge), shown here in bold, that would
expand the definition of visa availability:
An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is
immediately available to him or her at the time the application is filed. If the applicant is a
preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will
be consulted to determine whether an immigrant visa is immediately available. An immigrant
visa is considered available for accepting and processing the application Form I-485 [if] the
preference category applicant has a priority date on the waiting list which is earlier than the
date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her
category are current) (“final action date”). An immigrant visa is also considered available for
submission of the I-485 application based on a provisional priority date (‘filing date”) without

 See Gary Endelman and Cyrus D. Mehta, Do We Really Have To Wait For Godot? A Legal Basis For Early Filing Of 
An Adjustment of Status Application,‐we‐really‐have‐to‐wait‐for‐godot‐


reference to the final action date. No provisional submission can be undertaken absent prior
approval of the visa petition and only if all visas in the preference category have not been
exhausted in the fiscal year. Final adjudication only occurs when there is a current final
adjudication date. An immigrant visa is also considered immediately available if the applicant
establishes eligibility for the benefits of Public Law 101-238. Information concerning the
immediate availability of an immigrant visa may be obtained at any Service office.
If early adjustment filing consistent with INA 245(a)(3) is included in the final rule, many more
workers caught in the crushing employment-based preference backlogs will benefit from it.
Having an actual rule in place, as proposed, will prevent the arbitrarily holding back the filing
date, and in recent months, not even recognizing it for purposes of filing I-485
applications. While an EAD of an approved I-140 is beneficial but of limited value as the new
employer would have to re-sponsor the alien, being able to port off a pending adjustment
application under INA §204(j) would allow the retention of the earlier I-140 petition (and
underlying labor certification), without the need for an employer to file a new labor certification
and I-140 petition. The filing of the I-485 application would also be able to protect a child from
aging out under the Child Status Protection Act,5 which an EAD off an approved I-140 would
not be able to do. Folks whose filing date would not be current could still take advantage of the
EAD based on an approved I-140, but for those who can file an early I-485, they would incur
many more benefits, including the ability to exercise true portability and eventually adjust to
permanent residence in the United States.
Providing Beneficiaries of I-140 Petitions Subject to INA §204(j) Portability with Notice
and an Opportunity to Respond to Any Adverse Actions Regarding Those Petitions
The proposed rule will make clear through amendments to 8 CFR 204.5(e)(2) that an I-140
petition will continue to confer a priority date unless it is revoked because of fraud or willful
misrepresentation, invalidation or revocation of the underlying labor certification, or “A
determination by USCIS that petition approval was in error”, as proposed 8 CFR 204.5(e)(2)(iv)
states. Even an I-140 petition that is withdrawn, for example, would continue to confer its
priority date on all subsequent petitions filed for that beneficiary. In addition, withdrawal of the
I-140 petition by the petitioning employer, or termination of the employer’s business, would only
lead to revocation of the petition, per proposed 8 CFR 205.1(a)(3)(iii)(C) and (D), if such
withdrawal or termination were to occur less than 180 days after approval of the I-140 petition.
Otherwise, in the face of a withdrawal or termination of the employer’s business after those 180
days had passed, the petition would remain valid indefinitely. Thus, even a petition which an
employer tries to withdraw after 180 days have passed could, under the proposed rule, be used as
the basis for portability under INA §204(j) as enacted by the American Competitiveness in the
21st Century Act (“AC21”), which provides the ability to proceed with employment-based
adjustment based on a different job offer to that which underlay the I-140 so long as it is in a
same or similar occupation and the adjustment application has been pending for 180 days.


 See Cyrus D. Mehta, Winter Blues: Freezing the Age of A Child Under the New Visa Bulletin,‐blues‐freezing‐age‐of‐child.html 


While these provisions provide some insurance against a petitioning employer deliberately or
inadvertently undermining §204(j) portability, however, they do not go far enough to accomplish
that aim. It appears from the proposed rule that in making its determination whether “petition
approval was in error”, to quote again from proposed 8 CFR 204.5(e)(2)(iv), and so should no
longer confer a priority date, USCIS would look to the I-140 petitioner for further information,
even though that petitioner might lack any interest in providing it. Similarly, the rules regarding
revocation of an I-140 petition on notice have not been changed by the proposed rule, and
presumably would again involve notice to the petitioner. A hostile petitioner who would have
wished to withdraw a petition, or a petitioner which had innocently gone out of business, could
give rise to a revocation by failing to respond to notice from USCIS, and in so doing undermine
the exercise of §204(j) portability.
This is not merely a theoretical concern. A recent precedential opinion of the U.S. Court of
Appeals for the Second Circuit, Mantena v. Johnson, 809 F.3d 721 (2d Cir. 2015), published on
December 30, 2015, demonstrates how this problem can arise under the current regulations.
The plaintiff in Mantena had been the beneficiary of an I-140 petition filed by Vision Systems
Group (VSG). Roughly two years after filing her I-485 application for adjustment of status in
July 2007, she sent a letter to USCIS requesting to exercise portability and substitute as a
successor employer CNC Consulting, Inc. Nearly a year after that, the president of VSG pled
guilty to mail fraud in connection with a different petition, which led USCIS to believe that all
VSG petitions might be fraudulent. USCIS therefore sent Notices of Intent to Revoke (NOIRs)
regarding, it appears, many or all VSG I-140 petitions, including Mantena’s. The NOIR for
Mantena’s petition went unanswered – possibly because Mantena had, at that point, not worked
for VSG in three years – so USCIS revoked the I-140 petition and then denied Mantena’s I-485.
Following repeated attempts to resolve the issue by filing motions, Mantena brought a lawsuit in
the U.S. District Court for the Southern District of New York, claiming that the revocation of the
I-140 petition and subsequent denial of her I-485 had violated the relevant regulations and
deprived her of constitutionally protected due process rights. The district court ruled against her,
but on appeal the Second Circuit ruled that USCIS had been required to notify either Mantena, or
possibly her successor employer CNC, of the NOIR.
Under the INA as amended by AC21, the Second Circuit found, USCIS could not, when it was
contemplating revocation of an I-140, notify only the former employer of an I-140 beneficiary
who had already exercised portability to leave that employer. As the Second Circuit found,
By placing beneficiaries and successor employers in a position of either blind faith in the
original petitioner’s goodwill and due diligence or a forced and continued relationship
with the now-disinterested and perhaps antagonistic original petitioner, such a scheme
would completely undermine the aims of job flexibility that those amendments sought to
Mantena, slip op. at 28-29. The Second Circuit in Mantena remanded to the district court for
further consideration of whether the required notice should have gone to Mantena, CNC as her
successor employer, or both, but held that in any event some such additional notice was required.


Mantena is not the first case to confront this sort of fact pattern. See, e.g., Kurapati v. USCIS,
775 F.3d 1255 (11th Cir. 2014); Patel v. USCIS, 732 F.3d 633 (6th Cir. 2013). The USCIS
Administrative Appeals Office also issued a request for amicus briefs regarding this issue on
April 7, 2015, which is available at
The Second Circuit’s decision in Mantena does a particularly good job, however, of explaining
why additional notice of proposed revocation of an I-140 petition is required.
USCIS has the opportunity, in the final revisions to its proposed rule, to clarify and expand upon
this holding of Mantena. The final amended regulations should provide that when an I-140
petition has been approved for more than 180 days, or an I-485 based on an I-140 petition has
been pending for more than 180 days, the beneficiary of the I-140 petition has the right to receive
and respond to any notice regarding potential revocation of the I-140 petition. This will
safeguard the job flexibility interests which, as the Second Circuit noted, the AC21 permanent
portability provisions were designed to secure in the first place. And it will do so without unduly
burdening successor employers, who may be willing only to hire their new employee but not to
become too deeply enmeshed in the immigration paperwork and respond to notice regarding an
I-140 petition.
Without the addition of Mantena’s rule, the current proposed regulations would leave I-140
beneficiaries “in a position of either blind faith in the original petitioner’s goodwill and due
diligence or a forced and continued relationship with the now-disinterested and perhaps
antagonistic original petitioner,” Mantena, slip op. at 28-29. A petitioner who is no longer
interested, may no longer be in business, or may actively wish harm to the I-140 beneficiary,
could quite likely fail to respond to an NOIR, leaving USCIS with the mistaken impression that a
petition has been approved in error. This would, in those cases, destroy the benefits of stability
that the proposed rule’s changes to 8 CFR 204.5(e)(2) and 8 CFR 205.1(a)(3)(iii)(C) and (D) are
intended to produce.
Of course, as Mantena itself held, this sort of notice may in fact be mandated by the statute,
whether USCIS explicitly mentions it in the regulations or not. But it would be much more
efficient for USCIS to incorporate this notice into the express terms of the regulations, rather
than leaving the details to the vagaries of case-by-case litigation in different circuits. 
Preserving the Ability Of H-1B To Seek H-1B Extension Based On Other Spouse’s Labor
The American Competitiveness in the 21st Century Act (AC 21) allows for an extension of H-1B
visa status beyond the statutory time limitation of six years for those who cannot obtain a green
card within this period. There are two pivotal provisions. AC 21 §106(a) allows for one year H1B extensions beyond the sixth year if a labor certification application or I-140 petition was filed
at least one year prior to the last day of the alien’s authorized admission in H-1B status. Under
second provision, AC 21 §104(c), the beneficiary of an approved I-140 petition can seek an H1B extension for three additional years if it can be demonstrated that he or she is eligible for
permanent residence but for the per country limitation.


The proposed rule seeks to provide this benefit only to the principal beneficiary and not to the
spouse, assuming both are in H-1B status. While it is true that the other spouse who is not the
direct beneficiary of a labor certification or I-140 petition can change status from H-1B to H-4
status, and seek an EAD as an H-4 spouse under the recently promulgated rule that allows for
this, experience has shown that this can be a long process. Changing from H-1B to H-4 status
can take several months, and there would also be additional delays in receiving the EAD. Even if
the H-1B spouse proceeds overseas to apply for an H-4 visa, it would take at least 90 days before
the H-4 spouse can obtain the EAD after being admitted into the US in that status. It is thus more
convenient for the spouse who is also in H-1B status to continue to extend that H-1B status, and
not disrupt his or her employment.
The rationale for not allowing a spouse who is also on an H-1B visa to use the other spouse’s
labor certification or I-140 petition is not very convincing. The preamble discusses AC 21
§104(c), which limits H-1B nonimmigrant status beyond the six-years to the ‘beneficiary of a
petition filed under section 204(a) of [the INA] for a preference status under paragraph (1), (2),
or (3) of section 203(b) [of the INA].” According to DHS’s logic, INA §203(b) applies only to
principal beneficiaries, but not to derivative beneficiaries who are separately addressed in INA
§203(d). The preamble also emphasizes that §104(c) refers to “the beneficiary” in the singular.
The DHS uses this same logic to deprive the other H-1B spouse from extending H-1B status one
year at a time based on the other spouse’s labor certification or I-140 petition filed 365 days prior
under AC 21 106(a).
Section 104(c) of AC21 provides an H-1B extension beyond six years to “any alien” who “is the
beneficiary” of an immigrant visa petition, and Section 203(d) states that a dependent spouse or
child shall “be entitled to the same status, and the same order of consideration provided in the
respective subsection, if accompanying or following to join, the spouse or parent.” Taken
together, these statutory provisions show that derivative beneficiaries are “entitled to the same
status” as principal beneficiaries, and are clearly persons “. . . on whose behalf a petition under
section 204(b) of that Act to accord the alien immigrant status under section 203(b) of that Act . .
. has been filed.”
Unlike AC 21 104(c), which the DHS focused on, there is a clearer basis in AC 21 106(a) to
allow an H-1B spouse to seek a one year extension of H-1B status beyond six years when the
other spouse is the beneficiary of an appropriately filed labor certification.
On November 2, 2002, the 21st Century Department of Justice Appropriations Authorization Act
(“21st Century DOJ Appropriations Act”) took effect and liberalized the provisions of AC21 that
enabled nonimmigrants present in the United States in H-1B status to obtain one-year extensions
beyond the normal sixth-year limitation. See Pub. L. No. 107–273, 116 Stat. 1758 (2002). The
new amendments enacted by the 21st Century DOJ Appropriations Act liberalized AC21 §
106(a) and now permits an H-1B visa holder to extend her status beyond the sixth year if:
1. 365 days or more have passed since the filing of any application for labor certification
that is required or used by the alien to obtain status under the Immigration and
Nationality Act (“INA”) § 203(b),


2. 365 days or more have passed since the filing of an Employment-based immigrant
petition under INA § 203(b).
Previously, AC21 § 106(a) only permitted one-year extensions beyond the sixth-year limitation
if the H-1B nonimmigrant was the beneficiary of a labor certification or an I-140 petition, and
365 days or more had passed since the filing of a labor certification application or the I-140
petition. See Pub. L. No. 106-313, 114 Stat. 1251 (2000). The term “any application for labor
certification” was absent in the original version of AC 21§106(a). Even under this more
restrictive version of AC21 § 106(a), the Service applied a more liberal interpretation, permitting
H-1B aliens to obtain one-year extensions beyond the normal sixth-year limitation where there
was no nexus between the previously filed and pending labor certification application or I-140
petition and the H-1B nonimmigrant’s current employment. This is now fortunately preserved in
the proposed rule, but there is no reason to also not allow a spouse to use “any” application for
labor certification, which could be the labor certification filed on behalf of the other spouse.
The absence of INA §203(d) in AC21 §104(c) or §106(a) does not in any way suggest that that
only the principal spouse can immigrate under INA §203(b) and the derivative needs INA
§203(d). Indeed, INA 203(d) states that the spouse is “entitled to the same status, and the same
order of consideration provided in the respective subsection [INA § 203(a), § 203(b), or §
203(c)], if accompanying or following to join, the spouse or parent.” Thus, the derivative spouse
still immigrates under INA 203(b). INA § 203(d), which was introduced by the Immigration Act
of 1990 (“IMMACT90”), is essentially superfluous and only confirms that a derivative
immigrates with the principal. See Pub. L. No. 101-649, 104 Stat. 4978 (1990). Prior to
IMMACT90, there was no predecessor to INA § 203(d), and yet spouses immigrated with the
principal. Thus, it is clear that a spouse does not immigrate via INA § 203(d), and the purpose of
this provision is merely to confirm that a spouse is given the same order of consideration as the
principal under INA § 203(b).
In conclusion, there is a very good argument under AC 21 §106(a) that the H-1B spouse can use
“any” labor certification, which includes the labor certification filed on behalf of the other
spouse, to seek an additional one year H-1B extension. Furthermore, there is also an equally
good argument, applicable under both AC 21 §106(a) and §104(c), that the exclusion of the
mention of INA §203(d) is not fatal as a derivative spouse also ultimately immigrates under INA
§203(b). The fact that “beneficiary” is mentioned in the singular and not in the plural should also
not undermine support for the notion that any beneficiary, either as principal or spouse, can
qualify for an AC 21 H-1B extension who is capable of immigrating under a labor certification
or I-140 petition, or both. DHS must interpret existing ameliorative provisions in AC 21 that
Congress has specifically passed to relieve the hardships caused by crushing quota backlogs in a
way that reflects the intention behind the law.
On a separate note, there is also no need to penalize an H-1B worker from availing from an AC
21 H-1B extension if s/he fails to file an adjustment application or make an application for an
immigrant visa within 1 year of availability. If the rule allows an H-1B extension based on a
labor certification or I-140 petition filed by another employer, it may take some time for the new
employer to obtain another labor certification and I-140 approval. The exception provided in the


rule for failure to file within 1 year should include this circumstance, where the applicant is
waiting for another labor certification and I-140 petition through a new employer.
H-1B Portability
Assume that a foreign national is employed in H-1B status by a cap-exempt employer. On April
1, a new, cap-subject employer files a petition for the beneficiary, which is approved on April 15
and effective on October 1. On April 16, this beneficiary ports to the cap-subject employer, even
though there will be no H-1B numbers until Oct. 1. The proposed rule should make clear that
this is permissible. The theory is that H-1B portability provides "employment authorization" but
not status. The employment authorization continues through Sept. 30.
The proposed rule at 214.2(h)(2)(i)(H)(2) should read this way under, "Length of employment."
“Employment authorized under paragraph (h)(2)(i)(H) of this section will continue until the
adjudication of the H-1B petition described in paragraph (h)(2)(i)(H)(1)(ii). If the petition is
denied, such authorization will cease. If the petition is approved, such authorization will continue
until the petition's effective date.”
This is based on the exchange of correspondence between Naomi Schorr and Efren Hernandez. 6
In Mr. Hernandez’s response to Ms. Schorr dated May 23, 2007, he stated:
As you note, section 214(n) provides employment authorization until the H-1B petition is
either denied or adjudicated. Congress appears to have not contemplated a situation in
which H-1B status would not be immediately conferred upon the portability worker upon
approval of the H-1B petition. By addressing the result of a denial but not an approval
Congress seems to have assumed that the alien would immediately be covered by the
approval and would no longer require the employment authorization conferred by 214(n),
an thus drafted 214(n) so that the employment authorization it provides ends upon
"adjudication." I agree that a result in which an alien with a pending petition is in a better
situation than one with an approved petition makes no sense. A reading of 214(n) such as
the one you suggest that continues employment authorization until H- I B
status is available is a logical one, and USCIS will explore this position in future
This rulemaking would be an appropriate opportunity to make explicit in regulation the reading
suggested in the correspondence between Ms. Schorr and Mr. Hernandez.
Freezing the Age Of A Child Under the Child Status Protection Act Even Through A New
One of the bright spots in the proposed rule at 8 CFR §204.5 is to clarify that even if an I-140
petition is revoked by the employer, the priority date of that I-140 petition can still be used if a
new employer files another I-140 petition. Even if the earlier I-140 petition is not revoked, and
the same employer wishes to upgrade from an EB-3 I-140 to an EB-2 I-140 petition, the priority

  Available at‐content/uploads/2010/12/4.‐USCIS‐Letter‐


date of the earlier EB-3 I-140 petition can still be retained. The ability to retain an old priority
date always existed in the rule, but the proposed rule also clarifies that retention of the priority
date is further permissible when an employer revokes a petition or goes out of business.
The key issue is whether the new I-140 petition would be able to continue to protect the age of
the child under the CSPA even if it is filed after the child has turned 21. We assume that the prior
I-140 petition froze the age of the child under the CSPA age protection formula because it was
filed prior to the child turning 21, the date became current, and an I-485 adjustment application
was filed within one year of visa availability. There are many beneficiaries under this scenario,
including the class of 2007 adjustment applicants whose priority dates under the India EB-3 have
not become current after they retrogressed in August 2007.Alternative, we assume that when the
priority date of the earlier I-140 becomes current, it would still potentially be able to protect the
age of the child. At issue is whether the new I-140 petition continues to protect the age of the
The CSPA, as codified in INA 203(h), applies to the “applicable” petition, and without further
clarification it may be difficult to bootstrap the new I-140 onto the “applicable” prior I-140
petition, which is no longer being utilized but was filed before the child’s 21st birthday. There is
room to interpret the term “applicable” petition to include the new I-140 petition, especially
since the new I-140 petition recaptured the priority date of the old I-140 petition. This should be
made explicit in the final rule where the new I-140 petition is considered the “applicable”
petition for purposes of protecting the age of the child under the old petition. If an old I-140
petition revoked by an employer can be used for purposes of preserving the priority date in a new
petition, port to another employer or seek an AC 21 H-1B extension, it should also be preserved
for preserving the age of a child under the CSPA. Similarly, even if the I-140 petition is not
revoked, a new I-140 petition, filed either by the same or new employer should be able to freeze
the age of the child if the old I-140 petition was able to do so.
Modifying Labor Certification Rules to Provide Greater Flexibility to Beneficiaries of
Approved Labor Certifications
Finally, we take this opportunity to suggest that USCIS propose to another Executive Branch
department, specifically, the Department of Labor (“DOL”), some regulatory changes which
would mesh well with those that USCIS has proposed and assist in accomplishing the goals of
the President’s initiative.
First, we propose that the DOL should formalize a policy, previously suggested in some case law
of the Board of Alien Labor Certification Appeals (“BALCA”), whereby an employer who
wishes to offer an alien prospective employee a position which in substance has already been the
subject of an approved labor certification, even for another employer, does not need to go
through the entire labor certification process all over again.
In Matter of Law Offices of Jean-Pierre Karnos, 2003-INA-18, 2004 WL 1278081 (Bd. Alien
Lab. Cert. App. 2004) [hereafter referred to as Matter of Karnos], BALCA held that if “there is a
bona fide job opportunity which remains the same, despite the change in employers,” then “[t]he
absence of a contractual agreement between [the employers] does not negate the fact that a bona

fide job opportunity exists” and thus “the change in employers, when an adequate test of the
labor market has been performed and when the position remains the same, does not offend the
policies of labor certification.” Matter of Karnos, 2004 WL 1278081 at *2-*3. This is, we
would submit, consistent with the text and purpose of INA § 212(a)(5)(A), which focuses on the
effect on U.S. workers of the alien filling a particular position, rather than the identity of the
employer who wishes to hire the alien to fill that position.
In Matter of Karnos, the lawyer who had operated the law office that was the original employer,
Jean-Pierre Karnos, had died before a final decision was made on the application for labor
certification. Matter of Karnos, 2004 WL 1278081 at *1. James G. Roche, Esq., continued to
run a similar law firm under the name of the Law Offices of James Roche, but could not
demonstrate that he had any formal contractual relationship with Mr. Karnos so as to assume
ownership of Mr. Karnos’s firm. Id. at *1-2. The initial Certifying Officer within the
Department of Labor denied labor certification based on the difference in employers, as BALCA
[T]he CO stated that Mr. Roche was “unable to provide that he and Jean-Pierre Karnos
had a written contractual or inheritance agreement.” Therefore, the CO found that Mr.
Roche was a separate employer and should not be entitled to the application signed by
another party. The CO denied certification on the ground that two “distinctly different
employers” were involved and there was no agreement to “attest to the legality of this
Matter of Karnos, 2004 WL 1278081 at *2.
In his request for review by BALCA, Mr. Roche clarified that while he could not establish a
formal relationship with the late Mr. Karnos, “he was offering the same position of accountant,
under the same terms and conditions, including the same wage, set forth in the original
application.” Id. BALCA agreed that this was sufficient:
In general, a new employer must file a new application unless the same job opportunity
and the same area of intended employment are preserved. International Contractors, Inc.
[and Technical Programming Services, Inc., 1989-INA-278 (Bd. Alien Lab. Cert. App.
1990)]; Germania Club, Inc., 1994-INA-391 (May 25, 1995). When the employer has
clearly demonstrated that the job opportunity, including the wage paid, remains the same
such that there is still a bona fide job opportunity, a new application is not required.
In this case, there is a bona fide job opportunity and an adequate test of the labor market
has been performed. The new Employer, Mr. Roche, has indicated that the duties of the
job remain the same and that the salary is the same. The same job opportunity has been
preserved. The absence of a contractual agreement between Mr. Karnos and Mr. Roche
does not negate the fact that a bona fide job opportunity exists with Mr. Roche as the
employer. The new Employer has clearly demonstrated that there is a bona fide job
opportunity which remains the same, despite the change in employers.
Therefore, in light of the particular factual circumstances presented by this case, we hold