Murthy Success Story: AAO Recognizes Individual Rights in AC21 Case

The administrative appeals office (AAO) issued a non-precedent decision, on April 28, 2017, that acknowledges the right of an I-140 beneficiary who has ported to a new employer pursuant to the American Competitiveness in the Twenty First Century Act (AC21) to receive and respond to a notice of intent to revoke (NOIR) issued on the corresponding I-140 petition. The Murthy Law Firm represented the foreign national worker in this case. The full AAO decision, reported as Matter of V-Inc., may be found online, on the U.S. Citizenship and Immigration Services (USCIS) website. The Murthy Law Firm is excited with this decision. We hope that the USCIS will change its policy recognizing the individual’s right to be notified when porting to new employment under the portability provisions of AC21.

Background: I-140 Petition Viewed as Belonging to Employer

Historically, the USCIS has viewed the I-140 as “belonging” solely to the petitioning employer, and the foreign national worker being sponsored for the green card (i.e. the beneficiary) as lacking legal standing related to the I-140 petition. All correspondence related to the I-140 petition typically would be sent only to the petitioning employer (and/or the employer’s legal counsel), and the USCIS would only accept correspondence regarding the I-140, such as response to a NOIR, if submitted by the employer.

Legal Standing in AC21 Portability Cases

Prior to the passage of AC21 in October 2000, the fact that the employee / beneficiary lacked legal standing regarding the I-140 was not of much concern, as the I-140 petition was only useful for purposes of applying for lawful permanent residency (i.e. a “green card”) with that specific petitioning employer. Since AC21 was signed into law, however, it is now possible for a foreign national worker with an I-485 that is pending for at least 180 days to use the existing I-140 petition approval to port to a same or similar position. When this occurs, if a NOIR is then issued on the I-140 petition, the worker clearly has an interest in fighting to prevent it from being revoked. If AC21 was used to port to a new employer, however, the prior employer that filed the I-140 typically would have nothing to gain by responding to the NOIR. Yet, over the years, the USCIS generally has refused to acknowledge the beneficiary as an interested party who has legal standing to contest issues related to the I-140 petition.

AAO Struggled with Issue of Employee / Beneficiary Rights

The AAO has long struggled with the issue of legal standing for an I-140 beneficiary. In fact, as discussed in the MurthyDotCom NewsBrief, AAO to Consider Individuals’ Rights in AC21 Cases (16.Apr.2015), the AAO issued a notice requesting amicus curiae (friend of the court) briefs on this topic.

Facts of the Case

Our client, a foreign national worker from India, was the beneficiary of an approved I-140 petition in the employment-based, second preference (EB2) category. When his priority date became current, he filed an application to adjust status (form I-485). The priority dates then retrogressed, and our client eventually ported to a similar position with a different employer, pursuant to the portability provisions under AC21.

Years later, the USCIS issued a NOIR on the I-140 to the petitioning employer (i.e. our client’s former employer). The petitioning employer had no interest in contesting the NOIR, so the beneficiary retained the Murthy Law Firm to respond to the NOIR on his behalf. We did so, arguing, in part, that the USCIS policy of only allowing the petitioning employer to respond was misguided. The USCIS refused to accept this argument, and the Murthy Law Firm ultimately filed a motion to reopen / reconsider with the AAO.

AAO Accepts Murthy Lawyers’ Arguments, Reversing Longstanding USCIS Policy

The AAO agreed with the Murthy Law Firm’s arguments, finding in relevant part that “… the AC21 statute gives some beneficiaries a statutory interest that we will recognize in our administrative immigration proceedings … We will accordingly allow beneficiaries who have properly ported or who are eligible to port under AC21 to participate in proceedings to revoke underlying I-140 petitions filed on their behalf, including any appeals or motions in those proceedings.”

Conclusion

The Murthy Law Firm is pleased and excited to have been able to achieve this victory on behalf of our client. Further, although this is a non-precedent decision, meaning that it is only binding on the beneficiary in this case, it will inevitably still be cited by others facing similar circumstances. We urge the USCIS to adopt this case as a precedent decision to provide more security to foreign national workers relying on AC21 to port to new employers.

The Murthy Law Firm never reveals details of any case handled by our firm, nor the identity of any client, without first obtaining his/her express consent. We appreciate the generosity of our client in allowing us to use this case as an example to our readers. Please note that all cases are different. Even with cases that appear to be similar, past success does not guarantee a favorable result.

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