Murthy Victory at AAO Leads to USCIS Policy Change Recognizing Individual Rights in AC21 Cases

On November 11, 2017, the U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum announcing that it has adopted the administrative appeals office (AAO) decision in Matter of V-S-G- Inc. The AAO decision recognized that, contrary to previous USCIS policy, a foreign national beneficiary, who has ported to a new employer under the American Competitiveness in the Twenty-First Century Act (AC21) may, under certain circumstances, be considered as an “affected party” in regard to the approved I-140 petition filed by the original sponsoring employer, meaning that the beneficiary has a legal right to participate in any administrative proceedings regarding the petition. Based on this decision, an eligible beneficiary / employee now should receive notice of an adverse action related to the underlying I-140, and be allowed to file an appeal or motion challenging an adverse action on the underlying I-140 petition. The Murthy Law Firm successfully represented the beneficiary in Matter of V-S-G- Inc.

Impact of Precedent Decision

The background of Matter of V-S-G- Inc. was reported previously in the MurthyDotCom NewsBrief, Murthy Success Story: AAO Recognizes Individual Rights in AC21 Case (15.May.2017). Prior to issuance of the November 11, 2017 memo, this case was a non-precedent decision – that is, a decision that applied to our client, but was not binding on the USCIS for other cases. Now, however, the holding will apply to all foreign nationals who find themselves in the same type of situation as our client.

Background of Case

This case involved the beneficiary of an approved I-140 petition who had filed an application to adjust status (Form I-485) before the priority dates retrogressed. Years after the I-140 was approved, and while the I-485 was still pending, the USCIS sent a notice of intent to revoke (NOIR) the I-140 to the original petitioning employer. Since the beneficiary had already ported to a similar position with a new employer, the original employer had no interest in contesting the NOIR. The beneficiary retained the Murthy Law Firm to respond to the NOIR on his behalf. The USCIS originally refused to consider the beneficiary’s response pursuant to the policy at the time that only the I-140 petitioning employer was an “affected party” in this type of employment-based case.

New Policy: Beneficiaries Who Port Under AC21 and Notify USICS Have Interest in the Underlying I-140 Petition

Pursuant to the Matter of V-S-G- Inc. memo, the USCIS now recognizes that, in certain circumstances, the beneficiary of an approved I-140 may be considered an “affected party” for purposes of being notified and being permitted to respond to an adverse action on the I-140. As explained by the AAO, “the AC21 statute gives some beneficiaries a statutory interest that we will recognize in our administrative immigration proceedings.”

Employee Must Notify USCIS of Porting

Under this new policy, the USCIS will provide notice of an adverse action to the foreign national beneficiary related to the underlying I-140 and allow the beneficiary to participate in the proceedings related to them if: (1) the beneficiary has filed an I-485 application to adjust status that has been pending for more than 180 days; and (2) the beneficiary has already properly requested to port to a new employer under AC21.

Affected Beneficiaries Should Notify USCIS of Intent to Port and Keep Mailing Addresses Updated

In order to be considered an “affected party” to the original I-140 petition entitled to receive notices and contest adverse actions, the beneficiary must have notified the USCIS of the intent to port to the new employer. Since January 17, 2017, AC21 notification is to be provided by the employee / beneficiary filing supplement J to form I-485. Any beneficiary who ported prior to January 17, 2017 must have affirmatively notified the USCIS in writing of the intent to port under AC21. Or, if the beneficiary of an approved I-140 moved to a new employer but has yet to notify the USCIS, supplement J may now be filed.

Employee Must Update Mailing Address

Additionally, such beneficiaries should ensure that their respective mailing addresses are updated with the USCIS by filing form AR-11, or by using the online change-of-address service. The MurthyDotCom NewsBrief, Notifying USCIS of Change in Address (23.Oct.2014) provides more information on submitting an address change to the USCIS.

Conclusion

The Murthy Law Firm is delighted to have helped not only our client in resolving his matter, but also to have provided this additional immigration protection to all similarly situated foreign national workers.

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