Murthy Victory in D.C. Federal Court Results in Reversal of I-140 Denial08 Sep 2021
The Murthy Law Firm is pleased to report on a recent, hard-fought win at the U.S. District Court for the District of Columbia, reversing the U.S. Citizenship and Immigration Services (USCIS) denial of a form I-140 petition for our client. This ruling undoubtedly will be cited by other I-140 beneficiaries in similar situations to argue that, in situations where the foreign national worker has ported to a new employer pursuant to the American Competitiveness in the Twenty First Century Act (AC21), the beneficiary should be entitled to receive and respond to inquiries from the USCIS on the underlying I-140 petition.
Background of Case
After the foreign national’s I-140 petition was denied, and the denial was affirmed by the USCIS Administrative Appeals Office (AAO), he retained the services of the Murthy Law Firm to challenge the decision in federal court. At the time of the denial of the form I-140, our client had already ported to a new employer, and notified the USCIS by filing an I-485 supplement J form. In this case, the court agreed that, because the I-140 beneficiary had ported to a new, permanent employer, the USCIS should have allowed the beneficiary an opportunity to respond to a request for evidence before denying the I-140 petition.
I-140 Petition Generally Belongs to Employer
Historically, the USCIS has viewed the I-140 petition as “belonging” solely to the petitioning employer, and has not recognize any legal standing or interest of the foreign national who is being sponsored for the green card (i.e. the beneficiary). Following several previous legal battles, however, the Murthy Law Firm was successful in convincing the USCIS AAO that individuals with pending I-485 applications, who utilize AC21 portability, should be granted a legal interest in the approved I-140 petition. In the AAO’s precedent decision of Matter of V-S-G, Inc., the USCIS found that the AC21 statute granted some beneficiaries interest in participating in proceedings to revoke underlying I-140 petitions. This is discussed in more detail in the MurthyDotCom NewsBrief, Update to Murthy AAO Victory in Matter of V-S-G, Inc. (23.Jul.2018).
Facts of the Case
Unlike the Matter of V-S-G-, Inc., which involved the question of a beneficiary’s interest in an approved I-140, this case involved a pending I-140 petition. Our client was a foreign national executive / managerial worker from India, whose former employer filed an I-140 petition on his behalf in the EB1(c) category for multinational managers and executives. Our client filed his I-485 application concurrently with the I-140 petition. After both applications had been pending for more than 180 days, our client ported to a similar position with a new employer, and notified the USCIS by filing supplement J.
After our client had ported to a new employer, the USCIS issued an RFE on the pending I-140. As our client no longer worked for the I-140 petitioner, that employer did not respond to the RFE, and the USCIS denied the I-140 petition without giving our client an opportunity to address the issues raised in the RFE. Our client filed an appeal with the AAO, arguing that the USCIS should have given him an opportunity to respond to the RFE because he had ported to a new employer under AC21. However, the AAO disagreed with this argument and affirmed the denial of the I-140 petition.
Murthy Takes Action: Sues in Federal Court Over I-140 Denial
After consulting with the Murthy Law Firm, our client agreed to bring suit in the federal court against the USCIS for its denial. Murthy Law Firm attorneys used case law and USCIS policy to argue that, because the law was updated to allow I-140 beneficiaries to port to new employers, even when the I-140 had not yet been approved, then the I-140 beneficiaries who have ported should be able to participate in the proceedings surrounding the I-140 petition. Ultimately, the court agreed, and ordered the USCIS to reopen the I-140 petition and give the beneficiary an opportunity to respond to its RFE.
Importantly, because this case involved an I-140 filed under the EB1(c) category, the court limited this ruling to apply only to beneficiaries of EB1(c) petitions. The court did not decide whether the same would hold true for beneficiaries in other employment-based categories.
We are thrilled that we were able to obtain a reversal of the I-140 denial for this Murthy Law Firm client. Further, although this is a non-precedent decision, meaning that it is only binding on the beneficiary in this case, it will inevitably be cited by others facing similar circumstances. Moreover, it lays the groundwork to make similar legal challenges to cases involving other employment-based categories, such as EB2 and EB3.
The Murthy Law Firm never reveals details of any case handled by our firm, nor the identity of any client, without first obtaining 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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