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WHO DESERVES REVOCATION NOTICE IN
AC21 PORTABILITY CASES?
By Joseph Patrick Whalen (Tuesday, March 8, 2016)
I...
Page 2 of 11
The stakeholder community has options, they can choose to:
(a.) quietly sit back watch how it unfolds and the...
Page 3 of 11
alien is withdrawn, the job offer of the petitioning employer is rescinded and the alien must
obtain a new em...
Page 4 of 11
(b) Evidence—
(1) Continuing employment offer. Unless otherwise specified on the form or form
instructions, f...
Page 5 of 11
Court and implicitly to USCIS’ AAO, due to inadequate notice regarding the revocation of
an I-140 concerning ...
Page 6 of 11
culpable in the fraud scheme. Did any beneficiary pay someone to file petitions even if
there was no actual p...
Page 7 of 11
if the individual changes jobs or employers if the new job is in the same or a similar
occupational classific...
Page 8 of 11
2nd employer filed for an EB-2 visa classification whereas, the 1st employer had filed for
an EB-3 visa class...
Page 9 of 11
(c) Notification of revocation. If, upon reconsideration, the approval previously granted is
revoked, the dir...
Page 10 of 11
Granted, the offered language below may be insufficient but it is a start.
(b) Evidence—
(1) In General. Sub...
Page 11 of 11
person/beneficiary/alien. This interpretation is bolstered by the fact that the
person/beneficiary/alien is ...
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WHO DESERVES REVOCATION NOTICE IN AC21 PORTABILITY CASES?

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WHO DESERVES REVOCATION NOTICE IN AC21 PORTABILITY CASES?

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WHO DESERVES REVOCATION NOTICE IN AC21 PORTABILITY CASES?

  1. 1. Page 1 of 11 WHO DESERVES REVOCATION NOTICE IN AC21 PORTABILITY CASES? By Joseph Patrick Whalen (Tuesday, March 8, 2016) In light of certain recent federal court decisions, USCIS has been forced to reconsider the effect of legislative changes upon the agency’s regulations, policies, procedures, corporate culture; and its adjudicators’ collective psyche.1 The U.S. District Courts have become mired in a multitude of cases with varying fact patterns concerning employment-based immigrant visa petition (I-140) revocations. The various Circuit Courts of Appeals have also definitively weighed in on topic. I now see that there are differences in certain fundamental aspects depending on the underlying statutes involved in the case. While there are good reasons why USCIS’ current regulations and procedures apply to the vast majority of I-140 revocations, it must be recognized that exceptions do exist. For example, Congress passed the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) Public Law 106–313, 114 Stat. 1251 (Oct. 17, 2000)2, as amended, in order to alleviate stresses upon our employment-based immigration system and beneficiaries of it. In the wake of that legislation, some changes were made to the agency’s regulations, policies, and procedures. Unfortunately, the courts have come to the conclusion that the changes made by the agency fell short of the mark. The time has come for the agency to make further regulatory changes in order to catch up with the statutory changes. This situation might support a “Direct Final Rule” (DFR) but USCIS did not choose that option. They could have put forth an “Interim Final Rule” (IFR). The DFR route is actually less advantageous than an IFR for technical reasons.3 In the end, they chose a Proposed Rule. This discussion is, in part, a comment on the Proposed Rule. 1 I am also willing to reconsider and expand my view of “who deserves standing” in certain situations, see: http://www.slideshare.net/BigJoe5/amicus-brief-to-aao-on-standing-41315 2 https://www.congress.gov/106/plaws/publ313/PLAW-106publ313.pdf 3 See page 9 at: https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf Interim
 Final 
Rule: 

When
 an
 agency 
finds 
that 
it 
has 
good
 cause 
to 
issue
 a 
final 
rule without first
publishing
 a 
proposed 
rule, it 
often 
characterizes 
the 
rule
 as 
an
 “interim 
final 
rule” 
or
 “interim
 rule”. 

This type 
of
 rule 
becomes 
effective 
immediately 
upon
 publication. 
In 
most
 cases, the 
agency 

  2. 2. Page 2 of 11 The stakeholder community has options, they can choose to: (a.) quietly sit back watch how it unfolds and then, meekly conform thus remaining passive; (b.) wait for changes and then go on the attack, thereby, being passive- aggressive; (c.) fight and negatively criticize USCIS from the very start no matter what they put forward, thereby being aggressive; or (d.) be proactive by speaking up and working with USCIS in an iterative manner in an effort to reach an agreeable solution, i.e., make an effort to communicate thus being assertive. Obviously, I am in favor of the final option listed above. This missive is written and offered in that vein. On December 31, 2015, USCIS, via DHS, published a proposed rule that includes this subject matter. The following expanded section and new section in the proposed rule which is found at 80 FR 81899-819454 and of particular relevance to this discussion is: § 205.1 Automatic revocation. (a) * * * (3) * * * (iii) * * * (C) In employment-based preference cases, upon written notice of withdrawal filed by the petitioner to any officer of USCIS who is authorized to grant or deny petitions, where the withdrawal is filed less than 180 days after approval of the employment-based preference petition, provided that the revocation of a petition’s approval under this clause will not, by itself, impact a beneficiary’s ability to retain his or her priority date under 8 CFR 204.5(e). A petition that is withdrawn 180 days or more after approval remains approved unless its approval is revoked on other grounds. If an employment-based petition on behalf of an stipulates 
that 
it
will
 alter
 the
 interim
 rule
 if 
warranted
 by
 public
 comments. If
 the agency
 decides 
not 
to 
make
 changes 
to the
 interim
 rule, it 
generally
 will 
publish
 a
 brief
 final
 rule notification in
 the
 Federal 
Register 
confirming 
that 
decision.
 (cont’d) Direct
 Final 
Rule:

 When
 an
 agency
 decides 
that
 a 
proposed 
rule
 is 
unnecessary
 because
 it 
 would
 only 
relate
 to
 routine 
or 
uncontroversial 
matters, 
it 
may
 publish
 a
 direct
 final 
rule
 in
 the 
 Federal
 Register.
 In
 a
 direct
 final 
rule, 
the 
agency
 states
 that the
 rule
 will 
go
 into
 effect
 on
 a
 certain
 date, 
unless 
it 
gets 
substantive 
adverse 
comments
 during
 the 
comment 
period.
 An
 agency 
may 
finalize
 this 
process 
by
 publishing in
 the
 Federal 
Register 
a 
confirmation 
that 
it 
received
 no 
 adverse
 comments. 

If 
adverse 
comments 
are 
submitted, 
 the
 agency 
is 
required
 to
 withdraw
 the 
 direct 
final 
rule 
before 
the 
effective 
date.

The
 agency 
may
 re‐start
 the 
process 
by
 publishing
 a
 conventional
 proposed
 rule 
or 
decide 
to 
end
 the
 rulemaking
 process entirely.

 4 https://www.gpo.gov/fdsys/pkg/FR-2015-12-31/pdf/2015-32666.pdf
  3. 3. Page 3 of 11 alien is withdrawn, the job offer of the petitioning employer is rescinded and the alien must obtain a new employment-based preference petition on his or her behalf in order to seek adjustment of status or issuance of an immigrant visa as an employment-based immigrant, unless eligible for adjustment of status under section 204(j) of the Act and in accordance with 8 CFR 245.25. (D) Upon termination of the petitioning employer’s business less than 180 days after petition approval in an employment-based preference case under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or 203(b)(3) of the Act, provided that the revocation of a petition’s approval under this clause will not, by itself, impact a beneficiary’s ability to retain his or her priority date under 8 CFR 204.5(e). If a petitioning employer’s business terminates 180 days or more after approval, the petition remains approved unless its approval is revoked on other grounds. If a petitioning employer’s business terminates, the job offer of the petitioning employer is rescinded and the beneficiary must obtain a new employment- based preference petition on his or her behalf in order to seek adjustment of status or issuance of an immigrant visa as an employment-based immigrant, unless eligible for adjustment of status under section 204(j) of the Act and in accordance with 8 CFR 245.25. [at 81940] (Everything after the highlighted part is new.) * * * * * § 245.25 Adjustment of status of aliens with approved employment-based immigrant visa petitions; validity of petition and offer of employment. (a) Validity of petition for continued eligibility for adjustment of status. An alien who has a pending application to adjust status to that of a lawful permanent resident based on an approved employment-based immigrant visa petition filed under section 204(a)(1)(F) of the Act on the applicant’s behalf must have a valid offer of employment based on a valid petition at the time the application to adjust status is filed and at the time the alien’s application to adjust status is adjudicated, and the applicant must intend to accept such offer of employment. Prior to a final administrative decision on an application to adjust status, USCIS may require that the applicant demonstrate, or the applicant may affirmatively demonstrate to USCIS, on a designated form in accordance with the form instructions, or as otherwise determined by USCIS, with any required supporting documentary evidence, that: (1) The employment offer by the petitioning employer is continuing; or (2) Under section 204(j) of the Act, the applicant has a new offer of employment from the petitioning employer or a different U.S. employer, or a new offer based on self-employment, in the same or a similar occupational classification as the employment offer under the qualifying petition, provided that: (i) The alien’s application to adjust status based on a qualifying petition has been pending for 180 days or more; and (ii) The approval of the qualifying petition has not been revoked. In all cases, the applicant and his or her intended employer must demonstrate the intention for the applicant to be employed under the continuing or new employment offer (including self-employment) described in paragraphs (a)(1) and (2) of this section, as applicable, within a reasonable period upon the applicant’s grant of lawful permanent resident status.
  4. 4. Page 4 of 11 (b) Evidence— (1) Continuing employment offer. Unless otherwise specified on the form or form instructions, for purposes of paragraph (a)(1) of this section, evidence of a continuing employment offer shall be provided in the form of a written attestation, signed by such employer, attesting that the employer continues to extend the original offer of employment and intends that the applicant will commence the employment described in the offer of employment within a reasonable period upon adjustment of status. (2) New employment offer. Unless otherwise specified by a form or form instructions, for purposes of paragraph (a)(2) of this section, evidence of a new offer of employment that is in the same or a similar occupational classification as the employment offer under the approved petition as required by section 204(j) of the Act must include: (i) A written attestation signed by the new employer describing the new employment offer, including its requirements and a description of the duties in the new position, and stating that the employer intends that the applicant will commence the employment described in the new employment offer within a reasonable period upon adjustment of status; (ii) An explanation from the new employer establishing that the new employment offer and the employment offer under the approved petition are in the same or similar occupational classification, which may include material and credible information provided by another Federal government agency, such as information from the Standard Occupational Classification (SOC) system, or similar or successor system, administered by the Department of Labor; and (iii) A copy of the receipt notice issued by USCIS, or if unavailable, secondary evidence showing that the alien’s application to adjust status based on such petition has been pending with USCIS for 180 days or more. (3) Intention after grant of adjustment of status application. Evidence that the applicant intends to commence the employment described either in the continuing employment offer or, if pursuing an offer of new employment in accordance with section 204(j) of the Act, the new employment offer, within a reasonable period upon adjustment of status, including a written attestation signed by the applicant. (c) Definition of same or similar occupational classification. The term ‘‘same occupational classification’’ means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term ‘‘similar occupational classification’’ means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved. [at 81944] Recently, in Mantena v. Johnson, -- F.3d -- (2d Cir. 2015) No. 14-2476 Dec. 30, 2015,5 the Second Circuit Court of Appeals explicitly remanded a case back to the District 5 https://scholar.google.com/scholar_case?case=17134259183668932753&q=Mantena+v.+Johnson&hl=en&as_sdt=6,33&as_vis=1
  5. 5. Page 5 of 11 Court and implicitly to USCIS’ AAO, due to inadequate notice regarding the revocation of an I-140 concerning a beneficiary who relied upon the AC21 “portability” provision to change employers long after filing her form I-485 seeking adjustment of status. See 8 U.S.C. § 1154(j) [INA § 204(j)] and 8 U.S.C. § 1182(a)(5)(A)(iv) [INA § 212(a)(5)(A)(iv)]. Upon remand, the court encouraged supplemental briefing on how the statutory changes made through AC21 have implicitly changed who is required to be notified of revocation or intent thereof; and thereby does have standing to assert a claim under these circumstances. The court noted that USCIS only sent the notice of intent to revoke (NOIR) to a company it knew, or should have known, was no longer in business. The beneficiary only learned of the visa petition revocation upon denial of her I-485 adjustment application. She then had to inform her successor employer, i.e., the successor-in-interest to this beneficiary based on the employment-based immigrant visa petition (I-140) that named her and allowed her to file for adjustment of status. The court determined that when Congress altered the statute, it changed the playing field but the regulations have not kept pace. The new statutory scheme “…requires that pre‐revocation notice be given either to the beneficiary or to the successor employer even though they were not the original petitioning parties.” Id. Slip Op. at p. 2. It is clarity on this point that is suggested as the topic for supplemental briefing and which is the primary, but not the only, subject of this article. The proposed new regulation implies that USCIS might handle the matter of notice of I-140 revocation, for cause, through an RFE for an I-485; or allow for proactive, voluntary submission of a new or altered, form or supplement. The RFE route is more advantageous and very fair to the alien and the new “successor” employer because of the longer time period permitted for a response (90 days). A NOIR6 allows 30 days, and after revocation there is only a 15 day period to file an appeal. The original petitioning employer, for whom Ms. Mantena no longer worked, pled guilty to mail fraud in connection with some other employee’s petition. That event prompted USCIS to begin revocation proceedings for all of the remaining petitions filed by that employer. I suppose that it needs to be considered whether any beneficiary was 6 NOIR = Notice Of Intent to Revoke
  6. 6. Page 6 of 11 culpable in the fraud scheme. Did any beneficiary pay someone to file petitions even if there was no actual position available at time of filing for an H1-B and/or the later employment-based immigrant visa petition, as the case may be? These are questions for the factfinder who might be an adjudicator (Immigration Services Officer) or a fraud investigator (FDNS Immigration Officer). Now, let us get back to the Mantena case. Ms. Mantena was, and remains, highly qualified for the classification sought. This incongruity and seeming injustice swayed the Second Circuit. Additionally, Mantena involved an I-485 that was filed based upon an I-140 that was preserved and transferred, in other words, the I-140 moved along with the beneficiary, pursuant to AC21’s “portability” provision. The original petitioner’s I-140 was later revoked. The procedures utilized during the revocation were deemed inadequate by the Second Circuit. It was a specific type of situation unlike ordinary revocations that do not involve any successor-in-interest who might have bought, or merged with, the original petitioning employer, nor AC21 portability at all. These and additional questions have been building for several years, at least and have gained momentum of late. For instance, on December 22, 2014, the Eleventh Circuit issued a revised opinion upon rehearing in the case of Kurapati v. USCIS, 775 F.3d 1255 (11th Cir. 2014)7 in which the justices found that an alien beneficiary had standing in the District Court even though there was no standing to bring an administrative appeal under USCIS regulations. The issues have been evolving over time. The particulars of Kurapati’s case involved the revocation of an I-140 petition for an EB-3 worker. The beneficiary filed for adjustment of status (I-485) and after the I-485 had been pending for nearly two years (much longer than the 180 days required), he changed employers per the portability provision of AC21 codified at INA § 204(j) [8 U.S.C. § 1154(j)], which reads: (j) Job flexibility for long delayed applicants for adjustment of status to permanent residence A petition under subsection (a)(1)(D) 4 for an individual whose application for adjustment of status pursuant to section 1255 of this title [INA § 204] has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job 7 https://www.gpo.gov/fdsys/pkg/USCOURTS-ca11-13-13554/pdf/USCOURTS-ca11-13-13554-1.pdf
  7. 7. Page 7 of 11 if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed. USCIS revoked the I-140 due to an inability to pay. In fact, the petitioner has gone out of business. The situation faced by Kurapati involved an original petitioner who was later discovered to have had an inability to pay and the I-140 was thereby revoked for good cause shown. The original petitioner for Mantena was later found to have engaged in deceitful practices which tainted everything they touched. Neither of the original petitioners put up a fight. In Kurapati, the employer was unqualified to file which meant that the I-140 was never valid and as such could not “remain valid” which is a prerequisite for AC21 porting. In Mantena, the employer was only shown to have been deceitful in someone else’s case rather than Mantena’s. It was never demonstrated whether or not Mantena’s I-140 was originally valid for purposes of AC21 porting which is partly why the 2nd Circuit remanded the case. I also observed that USCIS managed to write a Proposed Rule that addresses and seeks to implement AC21 portability without making reference to Matter of Al Wazzan, 25 I&N Dec.359 (AAO 2010) which is the only Administrative Precedent that addresses the question of I-140 validity in the context of AC21 portability. Patel v. USCIS, 732 F.3d 633 (6th Cir. 2013)8 deals with the questions relating to the zone of interests analysis portending prudential standing in a Title III court, i.e., the U.S. District Courts overseeing live cases with actual controversies. Patel and Kurapati have some similarities in that they find that beneficiaries of visa petitions, especially when they are also applicants for adjustment of status, have standing to bring APA challenges in District Courts even if excluded from administrative appeal proceedings. On January 29, 2015, a District Court Judge issued a decision in Musunuru v. Holder, 81 F. Supp. 3d 712 (E.D. WI 2015)9 which differed from what the 2nd Circuit would decide approximately eleven months later. In Musunuru, the alien beneficiary sought standing to challenge the revocation of an I-140 that had been filed by the same employer as had filed on behalf of Mantena. Musunuru, on the other hand, had a new employer who had filed a new labor certification application with DOL and got a new priority date. The 8 https://www.gpo.gov/fdsys/pkg/USCOURTS-ca6-12-01962/pdf/USCOURTS-ca6-12-01962-0.pdf 9 http://cases.justia.com/federal/district- courts/wisconsin/wiedce/2:2014cv00088/65590/34/0.pdf?ts=1422646082
  8. 8. Page 8 of 11 2nd employer filed for an EB-2 visa classification whereas, the 1st employer had filed for an EB-3 visa classification. Since the 1st employer had pled guilty to fraud and the 1st I- 140 was revoked, the earlier priority date was not retained. In Vemuri v. Napolitano, 845 F. Supp. 2d 125 (D.D.C. 2012)10 the challenge to the I-140 visa petition and associated applications were dismissed for lack of subject matter jurisdiction. This I-140 was denied due to inability to pay the wage. In Bernardo v. Johnson, -- F.3d -- (1st Cir. 2016) [No. 15-1177-January 29, 2016]11 a USCIS-AAO I-140 revocation was upheld. In this case, it was determined that the revocation statute involves discretion and thereby, the Courts have been stripped of jurisdiction to review. Depending on the course of attack, we are seeing a variety of variations on a theme. Hopefully, the additions to 8 CFR §§ 205.1 and 245.25, the latter of which is completely new, will help to clarify matters and settle some uncertainties. These two sections must be read together along with the appropriate sections within the INA. Even though the new regulatory language is helpful, it still falls short of the mark. There is still work to be done in order to explicitly allow for rebuttal by new employers. New employers can join the process through AC21 portability; or from the longstanding and recognized successors-in-interest to a business and any and all of their pending petitions. See Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm. 1987). It may be helpful to read the Proposed Rule along with the following. 8 CFR §205.2 Revocation on notice. (a) General. Any Service officer authorized to approve a petition under section 204 of the Act may revoke the approval of that petition upon notice to the petitioner on any ground other than those specified in §205.1 when the necessity for the revocation comes to the attention of this Service. (b) Notice of intent. Revocation of the approval of a petition of self-petition under paragraph (a) of this section will be made only on notice to the petitioner or self-petitioner. The petitioner or self-petitioner must be given the opportunity to offer evidence in support of the petition or self-petition and in opposition to the grounds alleged for revocation of the approval. 10 https://casetext.com/case/vemuri-v-napolitano-2 11 http://media.ca1.uscourts.gov/pdf.opinions/15-1177P-01A.pdf
  9. 9. Page 9 of 11 (c) Notification of revocation. If, upon reconsideration, the approval previously granted is revoked, the director shall provide the petitioner or the self-petitioner with a written notification of the decision that explains the specific reasons for the revocation. The director shall notify the consular officer having jurisdiction over the visa application, if applicable, of the revocation of an approval. (d) Appeals. The petitioner or self-petitioner may appeal the decision to revoke the approval within 15 days after the service of notice of the revocation. The appeal must be filed as provided in part 3 of this chapter, unless the Associate Commissioner for Examinations exercises appellate jurisdiction over the revocation under part 103 of this chapter. Appeals filed with the Associate Commissioner for Examinations must meet the requirements of part 103 of this chapter. [48 FR 19156, Apr. 28, 1983, as amended at 58 FR 42851, Aug. 12, 1993; 61 FR 13078, Mar. 26, 1996] * * * * * 8 CFR §204.5 Petitions for employment-based immigrants. (e) Retention of section 203(b) (1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b) (1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b) (1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b) (1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien. The new regulatory language found in the proposed § 245.25 is a good start but could be clearer. The final sentence in paragraph (a) has too many clauses. The inclusion of a reference to a form is nice but is confusing. In short, it is too wordy. Prior to a final administrative decision on an application to adjust status, USCIS may require that the applicant demonstrate, or the applicant may affirmatively demonstrate to USCIS, on a designated form in accordance with the form instructions, or as otherwise determined by USCIS, with any the applicant will be required to submit supporting documentary evidence, as directed by USCIS, that: Prior to a final administrative decision on an application to adjust status, the applicant will be required to submit supporting documentary evidence, as directed by USCIS, that: The verbiage pertaining to any new form or supplement is better relegated to the paragraph devoted to evidence. I suggest the addition of a preliminary clause with general information.
  10. 10. Page 10 of 11 Granted, the offered language below may be insufficient but it is a start. (b) Evidence— (1) In General. Submissions of evidence shall be in the manner proscribed by USCIS and accompanied by any form so designated for the purpose in adherence to that form’s instructions. Any such form shall be made available on the USCIS website. In closing I wish to draw a comparison to another “ameliorative” statute Congress passed, and has renewed several times. It is illustrated by what the Ninth Circuit found in Valencia v. Lynch, --F. 3d—(9th Cir. 2016) [No. 13-70414 February 3, 2016].12 Valencia dealt with the “…denial of adjustment of status under a regulation that precludes an alien substituted for the previous beneficiary of a labor certification application after a sunset date from claiming to be a grandfathered alien.” Slip Op. Summary13 at p. 2. The “ameliorative” statute involved was INA § 245(i) [8 U.S.C. § 1255(i)14], also known as the “penalty” provision due to the extra fee. The uninitiated readers might be scratching their heads and wondering how a “penalty” can be “ameliorative”. The answer is because it allows folks who would otherwise be prohibited from adjusting status to do so if they meet certain conditions set by Congress in the statute and further explained by INS (now USCIS) in the implementing regulations. The target “customers” for § 245(i) benefits are individual aliens unlawfully present in the U.S. who are beneficiaries of a valid immigrant petition or, as was at issue in Valencia, a permanent labor certification application (labor cert.) filed on their behalf by the sunset date, most recently the latest date was on or before April 30, 2001. In the case of a labor cert, there may have been some genuine confusion once upon a time because it used to be common for a new beneficiary15 to be substituted for the original beneficiary. However, the ameliorative effects of this statute, INA § 245(i), was targeted at the person/beneficiary/alien, and therefore, it is non-transferable to another 12 https://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/02/13-70414.pdf 13 The summary constituted no part of the opinion of the court. It was prepared by court staff for the convenience of the reader. 14 http://uscode.house.gov/view.xhtml?req=(title:8%20section:1255%20edition:prelim)%20OR%20(granuleid:USC- prelim-title8-section1255)&f=treesort&edition=prelim&num=0&jumpTo=true 15 The proposed alien employee named on a labor cert would later become the beneficiary name on an employment-based visa petition (form I-14o).
  11. 11. Page 11 of 11 person/beneficiary/alien. This interpretation is bolstered by the fact that the person/beneficiary/alien is legally allowed to have a new labor cert or petition filed on their behalf by a new employer or relative and be “grandfathered” into § 245 (i) eligibility. The prerequisite for grandfathering is to have had a labor cert or visa petition filed on one’s behalf on or before the sunset date and it must have been “approvable when filed”. It is not the job offer, labor cert, or I-140 that is grandfathered, those documents, if valid and “approvable when filed” merely serve as pieces of evidence for the beneficiary to be grandfathered. U.S. employers can file labor certs and I-140s to their heart’s content. That is, after all, the purpose of the employment-based portion of our immigration system. Dated this 8th of March 2016 /s/ Joseph Patrick Whalen

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