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.