Additional Details on Murthy Legal Team’s Victory in Matter of V-S-G- Inc.14 Dec 2017
As previously reported, the big news for employment-based immigrants is the adopted decision of Matter of V-S-G- Inc., recognizing that an employee waiting for the approval of the adjustment-of-status application (form I-485) has a recognized legal interest in the underlying I-140 petition. When Matter of V-S-G- Inc. was decided originally by the administrative appeals office (AAO), MurthyDotCom reported on our client’s success in the NewsBrief, Murthy Success Story: AAO Recognizes Individual Rights in AC21 Case (15.May.2017). One of the interesting aspects at that time was that the AAO actually issued two decisions, one to the defunct petitioning employer and one to Adam Rosen, the attorney at the Murthy Law Firm who represents the foreign national beneficiary.
Background on Murthy Response in Matter of V-S-G- Inc.
The Murthy Law Firm has been representing the beneficiary in Matter of V-S-G- Inc. since the notice of intent to revoke (NOIR) originally was issued by the U.S. Citizenship and Immigration Services (USCIS), in July 2012. By that time, the beneficiary had already notified the USCIS that he had ported to a new employer under the American Competitiveness in the Twenty-First Century Act (AC21).
The Murthy Law Firm responded to the NOIR based largely on our legal theory that it was illogical to allow an I-140 beneficiary to port under AC21, but then prohibit that same person from defending the I-140 from revocation. The law upon which this logic was based came from the 2010 precedent decision of Matter of Marcal Neto.
Connection to Matter of Marcal Neto
The legal team at the Murthy Law Firm believed that Matter of Marcal Neto made sense because that decision, like Matter of V-S-G- Inc., involved a foreign national who had an approved I-140, an I-485 pending for 180 days, and a new job in the same-or-similar occupational category. Normally, immigration judges and the Board of Immigration Appeals (BIA) have no legal authority over I-140 related questions. The U.S. Department of Homeland Security (DHS) lawyers argued to the BIA that the “DHS does not view an INA § 204(j) [i.e. AC21] portability determination as a separate adjudication from the adjudication of the application for adjustment of status.” Matter of Marcal Neto was issued with the BIA holding that a person in removal proceedings could defend his AC21 case even though it involved the I-140 petition. The reason, courtesy of the DHS, was that AC21 questions are all part of the I-485. So, if AC21 questions are just a subset of the I-485, then it should not matter whether the I-485 applicant is in removal proceedings, like in Matter of Marcal Neto, or not in removal proceedings, like our client.
Murthy Law Firm Files Amicus Curiae Brief
In 2015, when the AAO asked for amicus curiae briefs from the public on the question of whether an I-140 beneficiary should be allowed to defend the petition against revocation, the Murthy legal team filed an amicus brief. We fought hard for our client’s right to be heard by the USCIS and are thrilled that the AAO finally recognized the importance of giving a qualifying I-140 beneficiary the ability to defend the underlying I-140 petition from revocation.
The Murthy Law Firm is delighted to have won the case for our client on April 28, 2017. Just as important, it is gratifying to see that this decision has become an adopted decision for agency-wide policy, to benefit thousands of other employment-based immigrants.
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