BCIS Memo on I-485 Portability After I-140 Revocation
Posted Aug 12, 2003

We are pleased to announce that the Bureau of Citizenship and Immigration Services (BCIS) has issued a long awaited Memorandum on the effect of the revocation of an I-140 petition for I-485 cases. Though the Memo issued by William R. Yates is dated August 4, 2003, it was only released on Monday, August 11, 2003. The Memo is generally favorable but does contain some restrictions. The Memo explains conditions under which an adjustment applicant may enjoy I-485 portability under the provisions of the American Competitiveness in the 21^st Century Act (AC21) of October 2000. In this Memo, the BCIS confirms that the revocation of an I-140 petition, after the I-485 application has been pending more than 180 days, does not preclude the approval of the I-485 application.

Purpose of this Memo

The purpose of the August 4, 2003 Memo is to provide policy guidance to Service Center Directors, BCIS Regional Directors and BCIS field offices in processing I-485s in those cases where the beneficiary of an approved I-140 petition changes employers under AC21. The Memo also clarifies the impact of a revocation of an I-140 petition on a pending I-485 application. This issue has taken on increasing importance following provisions allowing concurrent filing of I-140s and I-485s.

Old Memos Still in Effect

At the outset, the Memo specifically states that previous guidance memos are still in effect. These memos all deal with various AC21 issues. Specifically, the three memos mentioned are: (a) the January 29, 2001 Memo on H1Bs seeking admission; (b) the June 19, 2001 Memo on initial guidance for processing H1B petitions and other related legislation; and (c) the February 28, 2003 Memo on procedures for concurrently filed I-485s when the underlying immigrant visa petition (I-140 or I-130) is denied. All of the earlier memos have been summarized in prior MURTHYBULLETIN articles and also posted on MurthyDotCom for the benefit of our subscribers and visitors to our website.

New Job Must Be "Same or Similar"

The Memo states that if the I-140 petition has been approved and the I-485 applicant takes a new job in a "same or similar" position after the I-485 application has been pending 180 days or longer, then the underlying I-140 petition remains valid under AC21. In a footnote, BCIS mentions that the underlying Labor Certification also remains valid if the same conditions are satisfied.

If the I-485 has been pending fewer than 180 days, then the approved I-140 petition shall not remain valid and shall not entitle the foreign national to work with a new employer or in a new job under AC21.

Revocation or Withdrawal of the I-140 Petition

The Memo provides that the approved I-140 petition remains valid even if the original sponsoring employer requests its revocation, as long as the I-485 application has been pending at least 180 days at the time of the revocation or withdrawal. Those who chose concurrent filing enjoy an advantage, as they are accruing time toward the 180 days while the I-140 is pending, as long as it is finally approved.

Evidence of New Job Must Be Submitted to BCIS

In cases where the I-140 is revoked, the Memo states that it is "expected" that the foreign national will have submitted evidence of qualifying new employment which is the "same or similar" to the position as with the original sponsoring employer. If that evidence has been submitted, the adjudicating officer may simply adjudicate the case as though the approved I-140 petition had never been withdrawn.

If the I-485 applicant has not yet submitted evidence of a new job offer when the I-140 petition is revoked or withdrawn, the adjudicating officer is directed to issue a Notice of Intent to Deny (NOID). The disadvantages of a NOID have been discussed under, "Analysis and Conclusion," below.

If the applicant responds to the NOID with proof of a new "same or similar" job within the time allotted on the NOID, the case may be favorably adjudicated, notwithstanding the revocation of the I-140 petition. If, however, the applicant is unable to provide evidence of a qualifying new AC21 employer showing that the new position is indeed a "same or similar" job, the I-485 application may be immediately denied.

Employer's Revocation of I-140 before 180 Days

If the I-140 is revoked prior to the 180-day point or prior to approval of the I-140 petition, then the I-140 petition is no longer valid and the I-485 will have no basis for approval under AC21.
 
BCIS Revocation Based on Fraud

Where the BCIS revokes the I-140, either before or after the 180 days, due to a finding of fraud, the foreign national cannot enjoy the benefit of AC21 portability. In the event of a fraud finding, the adjudicating officer has the discretion to deny the I-485 immediately.

Requirement of Bona Fide Job When I-140 Approved

The Memo requires that the offer of employment must have been bona fide and the employer's intent to employ the foreign national upon approval of the adjustment application must have existed at the time the I-140 was approved. This requirement is discussed under, "Analysis and Conclusion of this Memo," below.

No Need to Work for Sponsoring Employer to Use AC21

The Memo recognizes the fundamental fact that the entire permanent residency application process is for a future job offer and, accordingly, the I-485 applicant need not be working, or need ever to have worked, for the original sponsoring I-140 employer in order to benefit from AC21 portability. This is helpful and has been discussed below, under, "Analysis and Conclusion."

Analysis and Conclusion

Although this Memo is helpful in many respects in clear-cut cases where the I-485 applicant finds new employment which is the "same or similar" to the original employment, after the I-140 petition has been approved, and after the I-485 has been pending for more than 180 days, we wish to share some thoughts or concerns with you.

First, although not addressed in the Memo, the BCIS has previously verbally stated at various conferences and meetings that the time of the revocation is measured when the BCIS acts on the employer's request, rather than the date of the employer's letter requesting the I-140 revocation. However, this Memo seems to imply that the date of the employer's request for a withdrawal or revocation of the I-140 petition may govern, not the later date, when the BCIS actually withdraws or revokes the I-140 petition.

Second, the requirement that the employer must have the intent to employ the foreign national at the time of the I-140 approval is troubling. This language possibly results in a more restrictive view than appears under a more liberal reading of AC21.

Third, while this Memo recognizes the fundamental immigration concept that the green card process is for a future job offer, it points out that there must be a bona fide job offer in all cases. Since a bona fide job offer is necessary throughout the process, it may be necessary to establish this at some point to the satisfaction of the BCIS examiner. There is no better proof of the bona fide nature of a job offer than the adjustment applicant actually working for the sponsoring employer in the offered position, at the earliest possible stage of the case.

Fourth, AC21 was enacted with the goal of helping foreign nationals with job flexibility in situations where there was extended delay in I-485 adjudication. Given that I-140 adjudication is lengthy at some of the Service Centers, there are instances where the employer may go out of business eight or nine months after the I-140 was submitted and prior to the I-140 being approved. Then if the BCIS issues an RFE, the employer is no longer able to respond, while in other cases, the I-140 is approved. When AC21 law was enacted, I-140 petitions were not taking so long, so now foreign nationals risk jeopardizing the entire "green card" process due to delays in the I-140 adjudications. Additionally, some vindictive employers may put language in their withdrawal letters indicating the job offer had ceased prior to the I-485 pending for180 days, when that may not actually have been the case. For such situations that are beyond their control, some additional protections may be required to help the foreign national.

Fifth, the BCIS Memo uses the incorrect term "withdrawal" instead of revocation in various sections of this Memo, which causes some confusion. The term "withdrawal" is used in the context where a petition is pending with the BCIS and not yet approved. An employer or an applicant may request a withdrawal in cases where there is no final decision on the petition or application. After the approval of a petition, the employer may only request that the I-140 petition be revoked.

Finally, by requiring the BCIS to issue a NOID instead of an RFE regarding evidence of the new employment being the "same or similar", the I-485 adjustment applicant enjoys lesser rights and privileges. A NOID is not a denial, nor is it merely a Request for Evidence (RFE). It is a notice advising that the BCIS intends to deny the case, unless they receive information to overcome their intention. Generally, NOIDs have a shorter response of only 30 days time, compared to an RFE, which generally enjoys 12 weeks time to respond. This would be problematic for applicants that are between jobs when the NOID arrives and are unable to find the required qualifying employment for AC21 portability before the NOID deadline. Also, with a NOID, the foreign national is not allowed to merely request a withdrawal of the I-485 application as with an RFE. By filing a withdrawal request, a person is deemed not to have filed the petition or application under law and, therefore, the person does not have a final adverse decision on the case. The term "withdrawal" has been explained above in this section. By failing to respond to the NOID, the BCIS will deny the case at the end of the 30 days.

Although questions and gray areas persist in some portions, we at The Law Office of Sheela Murthy and our MurthyBulletin and MurthyDotCom readers appreciate the BCIS Headquarters clarification of key issues recognizing AC21 portability in certain cases even after the I-140 petition has been revoked or withdrawn by the original, sponsoring employer.