New USCIS Policy Creates I-140 Revocation Notice Rights to AC21 Porting Beneficiaries; Requires Proactive AC21 Porting Filing

In a November 11, 2017 Policy Memorandum, USCIS has formally adopted a recent AAO decision in Matter of V-S-G Inc. and has provided guidance on its impact on AC21 beneficiaries where the underlying I-140 immigrant petition is being revoked.   The new policy memorandum states that beneficiaries who have properly ported their green card process to a new employer under AC21 are “affected parties” who must be notified of a revocation proceeding against their former employer’s I-140 petition.

The Prior Policy and the “Unknown Revocation” Problem

Prior to Matter of V-S-G Inc. and this Policy Memorandum, if USCIS were to initiate an I-140 revocation proceeding against an I-140 petition, then only the employer was notified of this adverse action and given an opportunity to respond.   In cases where beneficiaries had filed I-485 Adjustment of Status application and had left the I-140 sponsoring employer, in the event USCIS sought to revoke the I-140 petition only the former employer would be given a notice and an opportunity to respond.

In many such cases the former employer would not have an interest in responding to such a revocation proceeding and the I-140 petition may be revoked, on a number of grounds, without the knowledge of the beneficiary and without affording the beneficiary an opportunity to response or otherwise take action.  Depending on the revocation grounds such revocation, however, may have a significant negative impact on the beneficiary including possible denial of a pending I-485, inability obtain subsequent H-1B extensions beyond the sixth-year limit, retaining priority date, obtain H-4 EAD for a spouse, and others.     We had reported and analyzed the prior litigation which ultimately led to this change in policy.

The New Policy

Starting November 2017, USCIS will consider beneficiaries who have properly ported their I-485 to a new employer under AC21 are considered to be affected parties and are entitled to receive a notice pertaining to the potential revocation of the approval of I-140 petition.   Read the entire policy memorandum.

Which Classes of I-485 Beneficiaries Will Be Notified?  Under the new policy when USCIS sends a notice of intent to revoke (NOIR) or notice of revocation (NOR) for an I-140 petition to the petitioning employer, they will also inform the beneficiary in cases where:

(1) the beneficiary has filed I-485 adjustment of status,

(2) the I-485 has been pending for more than 180 days, and

(3) the beneficiary has already properly requested AC21 portability of their I-485 application to a new employer.

AC21 Porting Required. The Policy Memorandum specifically states that only beneficiaries who have properly ported their I-485 under AC21 are entitled to this notification.  As of January 17, 2017, the AC21 porting process requires the beneficiary to file Form I-485 Supplement J with USCIS.   Prior to January 17, 2017, AC21 porting could be done by notifying USCIS in writing of the AC21 porting process.  In either case,  in order to be entitled to a notification of their former employer’s I-140 petition revocation, the beneficiary must have followed the applicable at the time of porting AC21 notification process.  When a USCIS adjudicator is about to issue an I-140 NOIR or NOR notice to the employer and before they can issue this equivalent notice to the beneficiary, the adjudicator must review the beneficiary’s AC21 porting  and determine that it was proper.

What is “Proper Porting”?    USCIS considers a proper porting to be one where the beneficiary has (1) requested AC21 porting of their I-485 adjustment of status application (by filing Supplement J or, prior to January 2017, by  providing written notice to USCIS) and (2) USCIS has evaluated the request and has determined that the beneficiary is eligible to port prior to the issuance of the NOIR or NOR.    Only when USCIS determines that this is the case would a beneficiary become “affected party” and be entitled to notice.

When Can USCIS Seek to Revoke an I-140 Petition?

It is appropriate to revisit some of the reasons which may cause USCIS to revoke an I-140 petition.  The Policy Memorandum includes some specific examples of revocation reasons.  Some of the common (but not all) scenarios when USCIS may seek to revoke an I-140 petition are:

• USCIS Material Error. The approval of the petition relies on an error or incorrect information:  examples include when USCIS relies on in correct employer information, the employer has not shown ability to pay the offered wage or the beneficiary does not have the required education or experience.
• Fraud or Willful Misrepresentation of material Fact. Examples are obtaining a prevailing wage determination for worksite location where the beneficiary is not intended to work; falsified information about ability to pay; falsified educational or experience records; and others.
• Lack of Bona Fide Job Offer. Examples are when the petitioner is not a viable entity (virtual office, shell office, etc.), off-site work location not consistent with beneficiary’s PERM labor certification address, petitioner not actual employer of the beneficiary, lack of full-time year-round job opportunity.
• Omissions of New Adverse Information. Examples are change in company circumstances such as company declaring bankruptcy or dissolution, site visit resulting in negative information or information obtained during an adjustment of status interview.
• Revocation or Invalidation of PERM Labor Certification. Examples are when there is a flaw with the labor certification process such as failure to disclose beneficiary’s influence over the job offer due to close business or familial relationship or other labor market test deficiency during the PERM process.

Revocation Notices and Opportunity to Rebut and Appeal

Where a beneficiary meets the requirement to be an “affected party”, USCIS is required to send a notice to the beneficiary in addition to the standard notice to the employer.   The contents of the notices may differ in order to protect sensitive employer information, especially in ability to pay cases.  In any case, the beneficiary is supposed to be given a clear indication of the adverse information and be afforded an opportunity to provide response and rebuttal evidence.   Similarly, when a decision to revoke is issued, the decision notice will be mailed to both employer and beneficiary and both parties will have an opportunity to file motion(s) and/or appeal(s).

Takeaway Point #1: AC21 Porting Still Optional But Very Strongly Recommended

Prior to this Policy Memorandum, the process of informing USCIS of AC21 porting of an I-485 application was essentially optional.   USCIS had expressed preference to be notified of AC21 porting of I-485 applications and there were many good reasons to proactively do so; however, many I-485 applicants were electing to wait and inform USCIS of AC21 porting at the time of a possible RFE or interview.

However, since the introduction of Form I-485 Supplement J in January 2017 and especially as a result of this policy change, prompt and affirmative AC21 porting notification is becoming very highly recommended in order to preserve a beneficiary’s right to know of any adverse action which has the potential to impact their immigrant visa process.   Please contact us if we can assist with an AC21 porting process.

Takeaway Point #2:  Employers Should be Exceedingly Compliant and Diligent During PERM and I-140

A review of the possible reasons for I-140 revocation outlines in the Policy Memorandum (and as described above) suggests that USCIS may consider a wide variety of reasons to revoke an I-140 petition.  For example, USCIS may decide to take adverse action if the worksite location on the PERM labor certification does not match the actual intended worksite.   Similarly, USCIS may take the position that a petitioning entity is not the beneficiary’s actual employer, for example, where the beneficiary is working for another employer while a petitioning employer has sought “future employment” immigrant visa process.

Takeaway Point #3:  USCIS Revocation Examples and Reasons

Our office continues to monitor I-140 cases and developments for possible expansion of I-140 revocation proceedings.  The Policy Memorandum cites a number of reasons for I-140 revocation and many of these reasons may be interpreted broadly to apply to a wide variety of I-140 cases.   The main concern is for nationals of India and China who have to wait a significant number of years between I-140 and I-485 approval and where there is a broader possibility of USCIS finding a flaw in the underlying I-140 petition which may have been approved for many years.  We urge I-140 petitioners to exercise proper diligence in conducting the PERM labor certification and the I-140 petition processes, including careful consideration of the intended worksite location(s),  possible future worksite location changes, ability to pay and other aspects of the process.

Conclusion

We welcome USCIS’s policy change to create the “affected party” notification and rebuttal rights to AC21 beneficiaries as this is likely to provide a warning and defense mechanism to many AC21 beneficiaries.   At the same time, this “affected party” right is only applicable to beneficiaries who affirmatively invoke AC21 so this policy essentially requires AC21 porting filing.

Our office will continue monitoring related developments and provide updates.    Please do not hesitate to contact us if we can be of any help in preparing or otherwise assisting with AC21 porting or related I-140 revocation proceedings.  Also, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.