Murthy Success Story: AC21 Portability After I-140 Revocation

Many MurthyDotCom and MurthyBulletin readers avail themselves of the provisions known as AC21 “green card” portability. Under these provisions of the American Competitiveness in the 21st Century Act (AC21), it is possible to continue an employment-based, permanent residence (green card) case based on a new, qualifying job offer, different from the job that was the original basis for the green card case. Following is the description of a case in which the Murthy Law Firm was able to overcome the USCIS’s disruption of the I-140 employer’s petition after the worker changed employment. We are pleased with the successful resolution of this case for our client and extend our thanks to him for allowing us to share his story with our readers. Confidential information and case details are never shared without explicit permission.

Background of the I-485 Case

The requirements and issues pertaining to AC21 green card portability are explained in many articles available on MurthyDotCom. These are recommended reading for those who are not familiar with this topic. One problem that can arise in AC21 cases is a disruption to the underlying I-140 petition by the employer or U.S. Citizenship and Immigration Services (USCIS). This can occur if the earlier employer requests a revocation of the I-140 petition or if the USCIS becomes aware of negative information, or perceived negative information, about the I-140 petitioner or the employee, even after it has been approved. One of the most significant problems faced by individuals in this situation is that they may not have access to communications or documentation regarding the I-140 petition, since it is filed by the employer. This matter was explained in our article, Murthy Takes Action: AC21 “Porting” and Employer Withdrawal of I-140 Petition (05.Mar.2010).

Case Appeared to be Routine AC21 Case

The Murthy Law Firm became involved with this case after the client ported to a new employer using the AC21 green card provisions. We notified the USCIS of our representation of our client, by filing Form G-28, and provided notification of the employment change. We established that the AC21 provisions applied and that the case should be approved. We presented this to the USCIS in a written legal memorandum, presenting information to help the client. This is typical of the many AC21 cases filed on behalf of our clients, and the USCIS routinely recognizes the Murthy Law Firm as the new attorney of record and contacts us for any future communication on the case.

Notice of Intent to Revoke I-140

Our client previously had been represented by his former employer’s attorney. The employer withdrew the I-140 petition after the individual changed employers. This is permitted, and should not prevent an adjustment of status (I-485) case from being approved.

In this instance, rather than simply revoking the I-140 based upon the employer’s request, the USCIS issued their own notice of intent to revoke the I-140 petition. This was based upon perceived defects in the I-140 itself. The prior employer did not respond, as the employee was no longer with that company. Due to revocation of the I-140 petition by the USCIS, rather than the employer, the USCIS denied the I-485 application.

USCIS Denies First Motion to Reopen

The Murthy Law Firm filed a motion to reopen the denied I-485. We argued that the revocation of the I-140 petition, based on the employer’s request, should not result in the denial of the I-485 application to adjust status in the AC21 context. We have successfully filed similar motions on multiple prior occasions. USCIS memos on the topic of I-485 AC21 portability make it clear that such I-485 denials are improper. However, in this case, the USCIS did not grant the motion. The USCIS took the position that the I-140 revocation was not based on the withdrawal by the employer, but stated that the I-140 petition was revoked for cause. “Revoked for cause” means that the revocation by the USCIS is due to a flaw in the I-140 petition approval. Such revocations are highly problematic in AC21 cases, as the basic requirement is that the I-140 petition must have been valid when the I-485 application was filed. If there is something fundamentally wrong with the I-140 petition from the beginning, then it is not possible to obtain a green card based on that filing, even through a new AC21 eligible job.

USCIS Denies Second Motion to Reopen

After discovering the USCIS’s position regarding the denial of the I-485, the Murthy Law Firm filed a second motion to reopen. This motion contained evidence pertinent to the I-140 NOIR, which had been provided by the prior company’s attorney. This evidence addressed the foreign national’s educational qualifications. The position required a degree in engineering or a related degree. The individual’s degree was in manufacturing management. We provided evidence with our motion, including a course transcript, in support of the position that our client had an engineering-related degree. We argued that, in an AC21 case, the applicant needed to be advised of the underlying concerns about his case, and afforded the opportunity to address those concerns, including submission of appropriate evidence.

The USCIS still did not agree, finding that the manufacturing management degree is not related to engineering. It also found that it was sufficient to issue the NOIR to the former employer and/or I-140 petitioner and that it did not have to issue anything directly to the foreign national. The USCIS claimed that the applicant had sufficient opportunity to address any issues in a motion to reopen and, thus, did not need to be given a NOIR or other such notification.

Arguments on Third Motion of I-485 Denial

In the typical Murthy fashion of zealously fighting for our clients, we at the Murthy Law Firm were persistent and refused to succumb. We filed yet another motion to reopen, challenging the I-485 denial and the legal reasoning behind the denial. We argued that the USCIS decision was erroneous, based upon the USCIS’s legal obligation to notify the applicant of adverse information about which he is unaware, and to afford him an opportunity to respond to that information.

Murthy Argues Insufficiency of Notice and USCIS Obligation

Our firm argued that the issuance of the NOIR to the former employer did not give the applicant sufficient notice of the adverse information under consideration by the USCIS. We further argued that the possibility of providing evidence and argument in the context of a motion is not a substitute for USCIS’s obligation to issue a notice of intent to deny the I-485, alerting the applicant to problems related to the I-140 and providing an opportunity for a response, including submission of evidence. This needs to occur prior to any I-485 denial of this type. We pointed out that the standards and options for submitting additional evidence are much broader in the context of a notice of intent to deny (NOID) response than in the context of an MTR.

The arguments presented were supported by statutory and regulatory provisions, as well as precedent decisions. We needed to submit clear legal support, in order to overcome the standard USCIS position that the I-140 petition is purely the property of the employer, and any issues related to it have to be directed to and addressed solely by the employer.

Murthy Submits Evidence of Educational Requirements Satisfied by Employee

Our firm also provided proof aimed at the substance of the I-140 revocation. In order to verify that the applicant’s degree was related to engineering, we obtained an expert opinion letter from the program director of the educational institution that issued our client’s degree in manufacturing management.

USCIS Finally Grants Motion

The motion was granted, and the USCIS confirmed that they reopened our client’s I-485 application. The case is moving forward, as our client recently received an appointment for fingerprinting in connection with this matter.

Conclusion

There are times when persistence, ingenuity, and a strong advocate can overcome many possible grounds for a denial. Filing a motion to reopen (MTR) must have a proper legal basis in order to be granted. The MTR must establish that the denial in question is incorrect. It is never enough to simply file multiple MTRs in an effort to obtain the answer for which one is hoping. However, when there are novel legal issues presented and wrongful denials, it is appropriate and necessary to challenge the USCIS and demand justice, as we at the Murthy Law Firm successfully managed for the benefit of our client in this case.

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