AAO to Consider Individuals’ Rights in AC21 Cases

The U.S. Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO) has issued a notice requesting amicus curiae (friend of the court) briefs on a topic that is of tremendous importance to many foreign nationals who are being sponsored for permanent residency (commonly, “green card”) by a U.S. employer. The AAO is examining the question of whether a foreign national worker should have the legal right to challenge certain types of decisions made by the government with respect to an immigrant petition (I-140 form) filed by a U.S. employer on behalf of that worker. The AAO is particularly focused on how this should apply in cases in which the sponsored employee has moved to a new employer under the portability provisions of the American Competitiveness in the Twenty First Century Act (AC21). To that end, attorneys at the Murthy Law Firm are in the process of drafting an amicus curiae brief in support of the foreign national worker’s legal right to challenge the I-140 decision in this type of case, which has the potential to jeopardize her/his pursuit of the American dream.

Background: AC21 Employment Portability with I-485 Filed Cases

One of the chief purposes of AC21 is to provide employment flexibility to foreign national workers with long-pending green card cases. The basic requirement is that if a person’s adjustment of status application (I-485 form) remains pending for at least 180 days, the worker may ‘port’ the approved I-140 to an alternative job offer (even if it is with a different employer), as long as the new job is in the same or a similar job classification as the one outlined in the underlying labor certification and I-140 petition.

While stakeholders tend to focus on the I-485 in AC21 cases, from an immigration law perspective, it is important to recognize that the AC21 provisions also address the I-140 petition. Under AC21, the I-140 remains valid with respect to a new job offer. So, if there is a qualifying job change, the I-485 can be approved because the underlying I-140 is considered valid. However, if the I-140 is revoked by the USCIS for cause (as opposed to being revoked simply because the former employer withdraws the I-140), this typically means that the I-485 filed based on that I-140 will be denied.

USCIS Treats I-140s as Belonging Solely to the Employer

As explained in the AAO notice, “[c]urrent…regulations provide that only ‘affected parties’ may appeal or make motions relating to immigration benefit requests and that the beneficiary of a visa petition is not an ‘affected party.'” In other words, the USCIS takes the position that the foreign national worker being sponsored for the green card (i.e. the beneficiary), lacks legal standing related to the I-140. Thus, the USCIS generally will neither send any notices regarding the I-140 to the beneficiary, nor will the USCIS allow the beneficiary to respond to such notices or challenge any decision made on the I-140. This does not mesh well in the AC21 context.

How Lack of Legal Standing Leads to I-485 Denials

The typical scenario involves an I-140 revocation by the USCIS that occurs after the beneficiary has ported to a new employer pursuant to AC21. The USCIS can revoke an I-140 petition approval at any time, if the agency determines that the approval was made in error. If the petitioner – that is, the company that filed the I-140 on behalf of the foreign national – receives a notice of intent to revoke (NOIR) after the worker has moved to a new employer, that petitioner generally would have little incentive to even respond to the NOIR, let alone put up a strong legal defense. Worse still, in some cases, the petitioner may no longer even exist by the time a NOIR is issued. Yet, even in these situations, the USCIS has long taken the position that the worker has no legal standing to be notified of a NOIR issued on the I-140 or to respond to any inquiry or challenge any decision related to the I-140.

If no response is provided to a NOIR issued on an I-140, this will almost always result in the I-140 being revoked for cause. And, as noted above, if an I-140 is revoked for cause, the beneficiary’s I-485 typically is destined for denial.

Federal Courts Offer Ray of Hope

As explained in the MurthyDotCom NewsBrief, Helpful Decision for AC21 AOS Portability Applicants (27.Oct.2014), one federal circuit court rejected the government’s argument that a foreign national worker lacks standing to respond to a NOIR issued on an I-140 after porting to a new employer pursuant to AC21. The U.S. Supreme Court also issued a ruling in 2014 that, potentially, could help change this unfair and illogical USCIS policy. This case, Lexmark International, Inc. v. Static Control Components, Inc., did not directly involve immigration law, but did provide “…an analytical framework to determine whether a statute grants standing to potential plaintiffs who seek redress in the courts.” In light of this new framework, the AAO has requested input on whether beneficiaries of I-140 petitions have standing to challenge I-140 denials and revocations generally, as well as specifically in the AC21 context.

Murthy Takes Action: USCIS Must Recognize Individual Rights Regarding I-140 Petitions

The Murthy Law Firm is drafting an amicus curiae brief in support of individual standing in the I-140 petition context, as explained above. In the AC21 context, the revocation of the underlying I-140 petition for cause has an enormous impact on the beneficiary – and, in most cases, a much greater impact than that felt by the former employer. Accordingly, the Murthy Law Firm is fighting to ensure that these foreign national workers are granted the legal standing that they clearly deserve.

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