Insight

Limited I-140 Standing for Beneficiaries Recognized by Agency

The adoption by U.S. Citizenship and Immigration Services of Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017), finally positions foreign workers with pending Form I-485 applications and green card applicants to realize the full potential of the law.

Limited I-140 Standing
AR

Adam Rosen

January 23, 2018 10:40 AM

The adoption by U.S. Citizenship and Immigration Services of Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017), finally positions foreign workers with pending Form I-485 applications and green card applicants to realize the full potential of the law. Back in October 2000, Congress enacted the American Competitiveness in the 21st Century Act of 2000 (AC21), with Section 106(c) providing portability to green card applicants. However, a USCIS revocation for cause of the Form I-140 petition’s approval would happen without any participation by the sponsored worker. The V-S-G- Adopted Decision now gives the sponsored worker a role in challenging a proposal to revoke an I-140 approval under limited circumstances.

Specifically, under AC21 Section 106(c), someone who has an approved Form I-140 petition and filed their Form I-485 application at least 180 days earlier can retain their eligibility on taking a new job offer. The new job offer accepted by the sponsored worker must be classifiable within the same or similar occupational category as the original job offered on the I-140 petition. The idea was that if your employer had sponsored you for the green card, the final stage—the I-485—should be approved within 180 days of filing. If, however, the final stage’s process took longer than 180 days, you remained eligible even if the original I-140 job offer was gone.

The problem became that, after taking a new job and waiting years for a decision on the I-485, suddenly USCIS might revoke the I-140 approval in the United States employed by the company or if you had moved on to filing the I-485 application and lost your job, your investment of time and building a career in the United States, if the I-485 was pending for 180 days.

The USCIS process to revoke an I-140 petition approval involves the agency first issuing a Notice of Intent to Revoke (NOIR) stating the proposed grounds, essentially identifying the flaws identified making the prior approval decision an error. Historically, an I-140 sponsor might simply decline to respond given the departure of the beneficiary. The revocation of the I-140 approval would follow with no consequence to the sponsor. This would inevitably lead to USCIS denying the I-140 beneficiary’s I-485 application, though. Prior to the V-S-G- Adopted Decision, the governing regulation stating that only the I-140 petitioner is an interested party was applied to refuse the sponsored worker any chance to rebut the NOIR’s allegations.

In the V-S-G- Adopted Decision, AAO ruled that when USCIS seeks to revoke an I-140 petition, the beneficiary has a protected interest in rebutting the allegations of ineligibility if she has used the AC21 benefit taking a new permanent job under Section 106(c). As the AAO stated in V-S-G-and USCIS clarified by the memorandum on implementation, PM-6020152 (Nov. 11, 2017), if the beneficiary has notified USCIS of having ported to a new job, when a NOIR is issued on an I-140 petition, one should be issued to both the petitioner and the beneficiary, i.e., I-485 applicant. USCIS is clear that if they have not been notified that the worker used Section 106(c) then the sponsored worker will have no opportunity to rebut those allegations. Undoubtedly, some will disagree with this particular limitation by the agency. Nevertheless, the adopted of this interpretation of the law is a long-overdue development that is likely to start being experienced during 2018.

Under the law, an I-485 applicant is not required to notify USCIS that she accepted new employment under AC21 Section 106(c). Even with the issuance of the Form I-485 Supplement J for use in making such notifications, USCIS still does not require informing the agency about new qualifying employment. The agency instructions express a preference to be notified, but do not require notification. However, given the parameters laid out by USCIS in the V-S-G- Adopted Decision, making such a notification about new AC21 Section 106(c) employment appears to be a strategically important decision to minimize the chance of losing an I-485 application to a post-I-140 revocation denial. Hopefully, this new decision will prove to be a boon to the immigrant community in what is looking to be like a challenging year to come.

-----------------------------

Adam Rosen is an assistant managing attorney at Murthy Law Firm practicing employment-based immigration law. He was counsel for the beneficiary in Matter of V-S-G- Inc.

Related Articles

Busting a Trust


by Joseph Marrs

The rules governing trusts and asset distribution are often much more flexible than many might assume. Here’s a primer.

Rules Governing Trusts and Asset Distribution

Cost of Entry


by Best Lawyers

As naturalization fees increase, a local nonprofit provides financial relief for immigration

Financial Relief for Immigration in Florida

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

2021 Best Lawyers: The Global Issue


by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

The U.S. Best Lawyers Voting Season Is Open


by Best Lawyers

The voting season for the 31st edition of The Best Lawyers in America® and the 5th edition of Best Lawyers: Ones to Watch® in America is officially underway, and we are offering some helpful advice to this year’s voters.

Golden figures of people standing on blue surface connected by white lines

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

The Best Lawyers in Australia™ 2024 Launch


by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Inflation Escalation


by Ashley S. Wagner

Inflation and rising costs are at the forefront of everyone’s mind as we enter 2023. The current volatile market makes it more important than ever to understand the rent escalation clauses in current and future commercial lease agreements.

Suited figure in front of rising market and inflated balloon

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards


by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

8 Different Types of Criminal Defenses in Law


by Best Lawyers

Learn about the different types of criminal defenses available in law, including innocence, self-defense, insanity and more. Protect your rights today.

Silver handcuffs laying on finger printed papers

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

The 2024 Best Lawyers in Spain™


by Best Lawyers

Best Lawyers is honored to announce the 16th edition of The Best Lawyers in Spain™ and the third edition of Best Lawyers: Ones to Watch in Spain™ for 2024.

Tall buildings and rushing traffic against clouds and sun in sky