Priority Date Retention & I-140 Revocation Protections: Proposed Regulation

As many MurthyDotCom readers are aware, the U.S. Department of Homeland Security (DHS) issued a proposed regulation, on December 30, 2015, aimed at improving the employment-based immigration process. While many have focused on the portion of this proposal covering I-140 based employment authorization documents (EADs) – which, as previously discussed in the MurthyDotCom NewsBrief, I-140 EAD Proposal is Limited and Restrictive (08.Jan.2016), is unlikely to be of use to the majority of foreign nationals – there are other portions of the proposal that are worthy of attention. Among them are provisions that address issues related to priority date retention and I-140 revocations.

I-140 Priority Date Retention Proposal

The proposed regulation clarifies that the beneficiary of an approved I-140 petition would be able to retain the priority date unless the I-140 is revoked due to error, fraud, or misrepresentation, or upon revocation or invalidation of the corresponding labor certification. The ability to retain one’s priority date after approval of the I-140 petition is key when making job changes. Current U.S. Citizenship and Immigration Services (USCIS) policy already generally allows for priority date retention, as long as the approved I-140 has not been revoked by the USCIS for fraud or misrepresentation. However, while the USCIS has repeatedly confirmed this policy, there have been some inconsistencies in how the policy has been implemented. Therefore, enacting a regulation that provides clear protections in this regard could be beneficial.

Ability to Revoke I-140 Due to USCIS Error is Cause for Concern

Although the proposal includes some important protections for the beneficiaries of approved I-140s, one area of concern is the loss of the priority date if the I-140 is revoked due to USCIS error. While certainly unusual, it is not unheard of for the USCIS to issue a notice of intent to revoke (NOIR) months or even years after an I-140 has been approved. Such NOIRs are sometimes even issued to petitioners that are no longer in business.

Even though it is understandable that the USCIS wishes to confer immigration benefits only to those who truly meet all the substantive requirements, this provision undermines the goal of making the U.S. immigration system more predictable and reliable. If a petitioning employer and foreign national provide the USCIS with accurate information in submitting an I-140 application, they should be able to rely on the approval issued by the USCIS without having to worry about the agency potentially second-guessing the decision years later.

Revocation or Invalidation of Labor Certification

The procedure for revoking or invalidating a labor certification is outside the scope of this article. However, it should be noted that, once an I-140 is approved, the petitioning employer cannot revoke or invalidate the labor certification; this can only be initiated by the government. Thus, this aspect of the proposal does aim to secure the employee’s ability to retain the priority date.

After 180 Days, Withdrawal of I-140 by Petitioner Would No Longer Lead to Revocation

Under another provision in the proposed regulation, once an I-140 has been approved for 180 days or more, it could only be revoked by the USCIS based on error, fraud, or misrepresentation, or upon revocation or invalidation of the corresponding labor certification. This means that, if a petitioner were to withdraw an I-140 180 days after its approval, this would not cause the USCIS to revoke the I-140. Such withdrawals are quite common in situations in which the I-140 beneficiary has moved to a new employer.

Continued Validity of I-140 Provides Key Benefits to H1B Workers & H-4 Spouses

The continued validity of an approved I-140 under these circumstances would provide two notable benefits. First of all, an H1B worker could continue to use the I-140 as a basis to extend status beyond the six-year standard limit after a change of employer. In addition, the I-140 could continue to be used by a dependent spouse to qualify for an H-4 EAD. This, undoubtedly, would provide some level of added flexibility and a sense of security for an H1B worker considering a move to a new employer.

I-140 Still Could Only Be Used for Position With Petitioning Employer

It is important to understand that the I-140 still could not be used as a basis to apply for a green card through a different employer unless the individual has a pending I-485 and is moving to a new position pursuant to the portability provisions of the American Competitiveness in the Twenty First Century Act (AC21). Rather, the new employer still would have to start the green card process anew, including, in most cases, going through the labor certification process. But, as discussed above, the priority date from the prior I-140 still, typically, could be retained.

Conclusion

The proposed regulation seeks to provide stability and greater work flexibility in the employment-based immigration process, and some of the provisions in the proposal appear to be quite promising. After reviewing the proposed rule in its entirety, however, the Murthy Law Firm has concluded that, in many important respects, it fails to accomplish these goals. Accordingly, attorneys in the firm are in the process of drafting comments to submit in response to this proposal with constructive criticisms and specific suggestions for changes that should be made in order to truly provide a more just and predictable immigration system.

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