US Appeals Court Creates a Notification Right to Affected Parties Prior to I-140 Revocation

In a December 30, 2015 opinion, the Second Circuit Court of Appeals has handed a decision (Mantena v. Johnson) which requires USCIS to provide notice of its intent to revoke an immigrant I-140 petition to certain parties who may be affected by the I-140 revocation.     Specifically, this notification provision would apply to beneficiaries of an approved I-140 petition who have been able to file an I-485 adjustment of status application and who have subsequently used the AC21 portability provisions to port the I-485 to a new employer.  The notification may also extend to the new employer as well.

Update (8/18/2016):   the Seventh Circuit Court of Appeals has issues a similar but further-reaching decision on the notification right in connection with I-140 revocation proceeding after I-485 AC21 porting to a new employer.  See details.

What is the Current Process and Why Is It a Problem?

Under current practice, when USCIS seeks to revoke an approved I-140 petition, they are required to inform only the petitioning employer and give them an opportunity to respond to the allegations giving rise to the revocation proceeding.    As a result, when USCIS seeks to revoke an I-140 due to fraud or material misrepresentation, they provide a notice to the petitioning employer with an opportunity to respond to the allegations.

The problem is that in many cases (including the Mantena v. Johnson case), the beneficiary may have already filed an I-485 adjustment of status petition and subsequently changed employers pursuant to the relevant provisions of AC21.   In such cases, the petitioning employer is not often not interested (or unable, if out of business or have changed addresses) to respond to the I-140 revocation proceeding and “defend” the I-140 petition on behalf of a former employee.    When the I-140 petition is revoked due to fraud or misrepresentation, USCIS promptly would deny the pending I-485 adjustment of status application and, without much notice, the beneficiary may be out of status, out of permission to work, unable to retain their priority date and, likely, unable to obtain additional H-1B time after having used the six-year H-1B limit.

When and Who Must USCIS Notify When They Seek to Revoke I-140 Petition?

Under the court’s ruling, USCIS must provide a notice to the parties who would be affected by a revocation of an approved I-140 petition, especially in I-485 AC21 porting cases where the beneficiary is no longer with the original petitioning employer.    The court ruling suggests that the affected parties in most cases will be the beneficiary and, possibly, the new employer.    

The rationale behind the court’s decision is that even though the I-140 regulations require notification of revocation to be given to the sponsoring employer, the subsequently-enacted AC21 porting provisions expand the number of affected parties to include the beneficiary and the new employer.

A Notification Does Not Always Mean Ability to Defend or Prevent a Revocation

It should be noted that just because USCIS may have to provide a notice to the beneficiary and/or the new AC21 sponsoring employer does not mean that an I-140 revocation may be prevented by the beneficiary or the new AC21 employer.     When USCIS seeks to revoke an I-140 due to fraud or misrepresentation, they often allege misconduct on the part of the sponsoring employer and in this kind of situations the beneficiary may not be able to do much even if they have a notice of the proceeding.     Likewise, a new employer may be in even weaker position to do something about a possible I-140 revocation.

The I-140 intent to revoke notification may be simply serve more of an advance warning to the beneficiary and their new employer that the I-485 and its benefits such as EAD work authorization and advance parole may end soon.    The possible options would certainly vary on a case-by-case basis, but having an advance warning would certainly help affected foreign nationals, their families and their new employers to seek alternatives.

Second Circuit Decision Does Not Mean Uniform USCIS Application (As Least, Not Yet)

It is important to note that this decision was handed by the Second Circuit Court of Appeals which has jurisdiction over the states of New York, Connecticut and Vermont.   It is unclear how USCIS would proceed in complying with this decision — our hope is that they will have adopt a uniform approach and adopt a notification practice for all I-140 revocation cases.

Conclusion

We applaud the Second Circuit’s decision to require notification in certain revocation cases.    As USCIS is considering expanding the I-140 regulations to add benefits of an approved (and not revoked due to fraud or misrepresentation I-140), the significance of an I-140 to a beneficiary is even greater.     While we recognize that in many cases the beneficiary may not be in a position to successfully defend the revocation, the sole fact of a notice may alert the foreign national and allow them to pursue timely alternatives.

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