GC Approval Reaffirmed Based on AC21
Posted Nov 04, 2005
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Earlier this year, we at The Law Office of Sheela Murthy shared the story of a person who had received a notice of intent to rescind (NOIR) the "green card" (GC) approval from the USCIS. That January 28, 2005 MurthyBulletin article, Risk of GC Rescission for Failure to Notify Change of Job / Employer!, is available on MurthyDotCom. In that case, issuance of the NOIR by USCIS was due to the individual's having changed employers during the I-485 process and the earlier employer's having revoked the I-140 petition, even though the person had filed the notification of a change of employer as recommended by the USCIS. That case was approved using the portability provisions of the American Competitiveness in the 21^st Century Act (AC21), allowing a person to change employers if certain conditions are satisfied. All the required conditions in that case were satisfied.
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When the USCIS issues a NOIR, it essentially means that they intend to revoke / rescind the previous approval based on the fact that the approval was issued in error. As a result of our repeated follow-up with various agencies, the USCIS has finally (almost eight months later) affirmed the earlier GC approval. Our firm is pleased to share this good news with MurthyDotCom and MurthyBulletin readers and to advise others to be careful to follow the law as well as the USCIS's recommendation to notify them of a change of employers under AC21.
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Background : Employer had Filed Revocation of I-140 Petition
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The individual in our January 28, 2005 article who received the NOIR, like so many others, had changed employers while his green card case was pending by using the provisions of AC21 portability. The notification to the USCIS regarding the change of employment and AC21 eligibility had all been properly filed. The USCIS approved the case and all seemed to be in order. Several months after the approval, however, the USCIS issued the NOIR on the basis that the employer had revoked the I-140 petition and that there was no proof of a new job offer under AC21. Our client obviously was alarmed at the threat of losing the "green card," or permanent resident status, for himself and his family. The Law Office of Sheela Murthy intervened and aggressively followed up with the USCIS to ensure that our client and his family would be able to retain their permanent resident status.
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Legal Response to USCIS's Threat to Rescind the GC
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Attorneys in our firm were perturbed with the issuance of the NOIR, especially under the facts of this case, when the individual had complied with all the required laws and suggestions of the USCIS under AC21. We thoroughly researched applicable laws and regulations regarding the rarely-used rescission process. Based upon that research, our firm filed a written response and opposition to the NOIR. We argued that the issuance of the NOIR was in error both procedurally and substantively. We documented that the initial approval of the green card was correct, as our client qualified under AC21 and had provided timely documentation of this qualification. We explained, documented, and argued the AC21 eligibility once again. We also pointed out numerous procedural errors regarding the way in which NOIRs are to be issued and carried out. The manner in which this NOIR was issued was deficient in almost every respect. These deficiencies started with the delivery of the NOIR and continued through omissions of required language and advisement of rights, including the right to a hearing, as required by law.
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Ombudsman, USCIS Service Center, and Others Contacted
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This matter held serious consequences for our client as well as for those in the future for whom an employer revokes the I-140 petition to use for another employee. Therefore, we at The Law Office of Sheela Murthy followed up on this case with the USCIS Ombudsman, pointing out the USCIS's erroneous understanding of the law and procedure pertaining to NOIRs. The Ombudsman generally addresses system-wide issues, rather than individual cases. [We reported on the work of the Ombudsman and the role of the Ombudsman in DHS in our August 8, 2003 article, DHS Watch : New Citizenship and Immigration Ombudsman, available on MurthyDotCom.] We also communicated our concerns to American Immigration Lawyers Association (AILA) and the USCIS Service Center to urge a favorable resolution in this matter.
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GC Approval Finally Reaffirmed by USCIS
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After about eight months of persistent follow-up on our part with the various federal agencies and AILA, we received a favorable decision for our client. It stated that, upon further consideration, the grounds for the rescission did not apply and that, after a complete review of the record of proceeding, the original approval of the Adjustment of Status Application was reaffirmed.
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We at The Law Office of Sheela Murthy are pleased with this result since it gives final resolution to our client. It is also important, however, because it should also help others who may have been adversely affected with such NOIRs whenever a prior employer revokes the underlying I-140 petition. We are hopeful that our bringing light to this incident at the highest levels of the government will spare others time and expense in the future. Although NOIRs are rare, it is disconcerting to think that such issuance could be made without following the legal and procedural rules, thereby taking away an individual's constitutional rights.
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Conclusion
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We at The Law Office of Sheela Murthy do not believe that this case should cause people to shy away from using AC21 portability to change employers since the law allows one to change employers during the GC process as long as the terms of AC21 portability are satisfied. With retrogression, many employers may wish to file for I-140 revocations of former employees, simply to provide a new employee with the coveted ability to use the labor certification in a substitution case. When the original person obtains the GC, however, the risk for the subsequent employee is that s/he will be unable to obtain the I-485 approval. This case affirms our advice and the practice of notifying the USCIS each time AC21 is used to change employers. This practice should avoid the risk of jeopardizing the GC in the future. Even if the AC21 portability filing information somehow does not get into the USCIS file properly, if a problem arises down the road it is possible to provide documentation of the AC21 filing and have a better chance of responding to the NOIR.