Murthy Takes Action: AC21 “Porting” and Employer Withdrawal

The U.S. Citizenship and Immigration Services (USCIS) held a February 26, 2010 National Stakeholder meeting via teleconference on a number of important topics. The Murthy Law Firm submitted questions, in advance, in an effort to obtain clarification on key matters faced by our clients, as well as readers of MurthyDotCom and the MurthyBulletin. The USCIS addressed two of the questions submitted by our firm. The discussion of one of those questions follows. It relates to the use of AC21 when the I-140 petition has not yet been approved.

When the I-140 Petition is Yet to be Approved

The Murthy Law Firm submitted a question to seek USCIS clarification of their internal procedures when an employer requests withdrawal of an unadjudicated (pending) I-140 petition filed for a foreign national who utilizes the AC21 adjustment-of-status (AOS) portability provisions in order to become eligible for the green card. Our concerns arise as a result of being contacted by foreign nationals asking for help with I-485 denials created by the employer withdrawal of the unadjudicated I-140 petition. These denials are contrary to earlier USCIS memos and stated procedures.

This question was posed to the USCIS by the Murthy Law Firm as part of our ongoing effort to address inconsistencies within the USCIS adjudication process in such cases. More information on this topic and similar efforts can be found in our November 20, 2009 NewsBrief, Murthy Law Firm Obtains AC21 Opinion Letter on “Porting” Prior to I-140 Approval.

USCIS Standard of “Approvable When Filed” for Pending I-140 Petitions

USCIS memos state that the standard for I-140 adjudication in the AC21 context is “approvable when filed.” That is, the USCIS is supposed to review pending I-140 petitions in cases in which the beneficiary has an application for adjustment of status (I-485) pending for more than 180 days and seeks to change jobs. The standard for such review is whether the I-140 was valid or “approvable” at the time it was filed. We at the Murthy Law Firm have found that the USCIS does not always apply this approach, particularly when the employer requests to withdraw the I-140 petition before it is approved. Thus, we have concerns about what USCIS procedures are in place to review such I-140s under the approvable-when-filed standard.

Applying the Standard to I-140 Petitions

The USCIS confirmed that the AC21 green card portability provisions apply in the scenario described in our questions. USCIS acknowledged having procedures in place for reviewing unadjudicated I-140 petitions in cases with I-485s that have been pending for 180 days or more. The USCIS referenced its guidance and affirmed that, when presented with an AC21 case, any unapproved I-140 will be reviewed to determine if it was approvable when filed. A request for evidence (RFE) may be issued on the I-140, if needed. If the approvable-when-filed standard is satisfied, then the I-140 petition can be approved and the I-485 would then be reviewed and, if appropriate, approved.

The USCIS verified with both the Texas Service Center and Nebraska Service Center that the proper procedures are in place and are being followed. We will continue to address this matter if we see further examples of the USCIS not following these stated procedures, and will bring these to the attention of USCIS headquarters to ensure that the service centers follow the guidance required to ensure approvals in appropriate cases.

Conclusion

The clarification obtained as a result of the Murthy Law Firm’s persistence on the topic of the approvable-when-filed standard for the I-140 petition should help many I-485/AOS applicants, if the I-140 processing is discontinued by the employer. We appreciate the USCIS’s confirmation and verification of the procedures in place for AC21 cases for which the I-140 petition has not yet been approved. The approvable-when-filed standard is important in the AC21 context, given the many changes that can occur with respect to an individual within a company in the current economy. We at the Murthy Law Firm believe that our proactive approach regarding I-485 approvals will help many in their efforts to obtain green cards.

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