FAQs on How Layoffs Affect Green Card Cases26 Jan 2023
A layoff can present significant challenges for any worker. But, for foreign nationals, a layoff can present an additional layer of difficulties. These FAQs are designed to provide general information regarding some of the more common issues that arise following layoffs for foreign nationals with a pending green card case.
Question 1. I have an approved I-140 but was recently laid off by that employer. What happens if the employer revokes my I-140? Does it matter how long ago the I-140 was approved?
If the I-140 was approved less than 180 days ago, the petitioning employer can withdraw the I-140, which will result in the U.S. Citizenship and Immigration Services (USCIS) revoking the I-140. In that situation, the beneficiary generally still gets to retain the priority date. However, that I-140 cannot be used for other purposes, such as for extending H1B status beyond the standard six-year max.
If at least 180 days have passed since the I-140 was approved, the employer can withdraw the job offer, but this will not impact the I-140. This means, in addition to retaining the priority date, the beneficiary still can use the I-140 for extending H1B status, and the H-4 dependent spouse can use the I-140 for purposes of applying for an employment authorization document (EAD).
Question 2. If my I-140 was approved 180 days ago, is there any circumstance where the I-140 could still be revoked?
Regardless of how long ago an I-140 was approved, the USCIS has the power to revoke an I-140 for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error. Prior to revoking the I-140, the USCIS generally must first issue a notice of intent to revoke (NOIR) to the petitioning employer and provide the petitioner with an opportunity to respond.
If it is revoked, the beneficiary cannot retain the priority date from that I-140 or use that I-140 to apply for any other immigration benefits (e.g., extending H1B status beyond six years).
Question 3. Given that I was laid off, if a NOIR is issued to my previous employer, I doubt they would bother to respond to it. What happens then?
If the petitioner does not respond to the NOIR, the USCIS will almost certainly revoke the I-140.
Question 4. Will USCIS send a copy of the NOIR to me?
USCIS policy and law is to issue the NOIR only to the company that filed the I-140.
Question 5. Is there any way that I can ask the USCIS to send me the NOIR and let me respond?
Ordinarily, the USCIS will provide the beneficiary with a copy of the I-140 NOIR only if the individual has an I-485 pending for at least 180 days, ports to a new employer pursuant to AC21, and submits an I-485 supplement J to inform the USCIS of the move to the new employer prior to issuance of the NOIR.
Question 6. My employer filed form I-485 for me concurrently with my I-140 petition. Those cases have been pending for more than 180 days, but I have now been laid off. Is it possible the USCIS may still approve the I-140 and I-485?
If the worker’s I-485 is pending at least 180 days but the I-140 is still pending, according to guidance issued by the USCIS in 2005, the I-140 should be reviewed and approved if it was approvable when filed. The USCIS, however, has not provided any formal guidance on this issue since 2005.
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