Risk of GC Rescission for Failure to Notify Change of Job / Employer!
Posted Jan 28, 2005
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A question frequently asked of The Law Office of Sheela Murthy, P.C., is whether a person with a pending I-485, Application for Adjustment of Status, should notify the USCIS if s/he wishes to change jobs or employers under the American Competitiveness in the Twenty First Century Act (AC21)'s portability provisions. The answer and practice at our Office, practically since the October 2000 enactment of AC21, has been that it is safest to notify the USCIS of the job change. Regardless of the fact that the AC21 law does not specifically require this, our belief has been solidified over time that it is the safest course in most cases. For more information on AC21 and additional reasons to file a notification, see our August 12, 2003 MurthyBulletin article, BCIS Memo on I-485 Portability After I-140 Revocation, available on MurthyDotCom.
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The wisdom of this practice was confirmed again recently in a Notice of Intent to Rescind (NOIR) on an approved permanent residence (I-485) case. The NOIR was based upon failure to notify the USCIS of an AC21-qualifying position. Rescission is an action on the part of the USCIS to take back an approved green card. It can be based upon mistake, fraud, or similar matters. This action is rarely taken since it has serious adverse legal consequences and the USCIS is required to follow certain due process procedures. The few cases we have heard about over the years have involved egregious fraud. We hope and trust that this NOIR is an isolated incident and not a trend of any kind, especially since the USCIS failed to provide personal service, notice by certified mail, or to follow any of the other procedural due process requirements for a rescission. To our knowledge, there have not been any new USCIS or DHS memos on this topic or other announcements that warrant an increase of this step for failure to notify the USCIS of a change in employers or jobs under AC21's portability provisions. Since this case involves AC21 and notification, however, we bring it to the attention of MurthyDotCom and MurthyBulletin readers as yet one more reason to notify the USCIS with due diligence when changing jobs under AC21.
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The particular case has been issued a NOIR on the basis that the employer revoked the I-140 petition and there was no information on record indicating a qualifying position under AC21. In fact, in this case, the documentation pertaining to the new, qualifying position and portability eligibility under AC21 had been timely filed with the USCIS. The NOIR was issued many months after the I-485 approval after the individual had already become a permanent resident and it is unclear what may have generated this secondary review. It is not clear why this AC21 filing was either overlooked or not in the file at the time of the issuance of the NOIR several months later. The fact that the AC21 notification was filed, however, provides a basis to respond to and refute the NOIR, along with a number of legal and procedural issues. Therefore, the AC21 notification is vital to the ultimate success in this case. Moreover, notification and proof of AC21 eligibility may be vital to avoid NOIRs in future cases.
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Our purpose in relaying the circumstances of this case is not to spread panic but to advise MurthyDotCom and MurthyBulletin readers of the potential risk in failing to notify the USCIS of the new employment as expected by the USCIS under AC21. We again emphasize that this appears to be an isolated instance at this point. This report is provided for those persons who may be considering use of AC21, who are debating the issue of whether or not to inform the USCIS of the job change. In this era, when in doubt, it is best to follow the most cautious path of notifying the USCIS of any change in job or employer to be eligible to obtain the approval of permanent resident status and to maintain that status.

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