As the AC21 regulations are not published lawyers have different interpretation/opinions to your question. INS has only published June AC21 MEMO (you can search goggle) and it says only that the job should be in same/similar occupation and I-1485 should be pending more than 180 days to make AC21 fully effective. The memo does not address the issue what will happen if I-140 is revoked before 180 days but I-485 is pending more that 180 days. I don't know any case that has been approved or refused in such situation.
Few days back Sheela Murthy posed that California and Nebraska Service Centers denied some cases where I-485 was pending more than 180 days and I-140 was revoked.
Please read below and reach your conclusions. You can also read the recent memo and opinion of Sheela Murthy
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MurthyBulletin VOL. IX, no. 06; February 2003, week 1
Posted : February 07, 2003
. AC21 and I-140 Revocation : INS Inconsistent on I-485s
The law and applications of the law are ever-changing. What seems to be
firm ground one day turns to quicksand the next. And so it goes with
AC21 and the impact of I-140 revocation.
For more than a year, top-level INS officials have stated in AILA
meetings that an I-485 that has been pending for 180 days or more can gain
approval under AC21, even if the employer revokes the I-140. That is,
once the I-485 has been pending for 180 days, the employer's revocation
of an I-140 is ineffective as far as causing a denial of the I-485 in
the context of AC21. The INS elaborated on this to clarify that the date
of revocation of the I-140 is the date the INS acts upon the revocation
request, not the date the request is made. Therefore, an individual
could benefit by the INS' delays in processing routine mail. Our June 28,
2002 MURTHYBULLETIN article, "I-485 Approval after I-140 Revocation"
<
http://www.murthy.com/UD140rev.html>, available on MurthyDotCom, covers
a victory involving this precise issue. Unfortunately, the INS guidance
has never been submitted in writing. This is currently causing problems
in several cases that have come to our attention.
We have recently become aware of cases in which the INS has denied
I-485s due to the revocation of the I-140 petition, even though the I-140
revocation occurred after the 180-day point. Motions to Reopen and
Reconsider were filed asking that the cases be approved based upon the INS'
stated policy. Both the California and Nebraska Service Centers issued
denials of the Motions, essentially citing that there is no written
policy. Accordingly, without a written policy, the INS cannot deviate from
the general legal requirement that an I-485 application needs to be
supported by an approved, un-revoked I-140 petition. We cannot be certain
whether this is a change in policy or an issue requiring the training
of examiners unaware of the policy.
The Law Office of Sheela Murthy recently contacted the INS Headquarters
in Washington, D.C. to rectify this situation and urge that the INS
follow their own guidance. INS policy personnel have reiterated that the
I-485 application should not be denied if it has been pending for over
180 days based on a previously approved I-140 petition. INS Headquarters
has informed our Office that they will contact the particular INS
service centers to have them reconsider their earlier decisions, based on
Headquarters' policy. However, INS has not yet addressed what happens to
post-July 31, 2002, concurrently-filed cases in which the I-140 was
never approved but the I-485 remains pending for over 180 days.
If AC21 is to have any meaning, the sponsoring employer must not retain
control over the foreign national after the 180-day point. An
individual's ability to obtain approval of an I-485 based on a job offer from a
new employer should not rest upon the former employer's whim to revoke
the I-140 petition or not. Fortunately, the majority of employers do
not tend to revoke the I-140 petition. However, we have seen employers
inadvertently revoke I-140s when the intent was to revoke the H1B
petition, as is required under certain regulations. We have seen some
employers attempt to retaliate against an ex-employee by revoking the I-140
petition after the 180-day point. We have seen employers revoke I-140s who
simply do not want any extra papers bearing their names at INS.
Employers hoping to hire more foreign nationals in the future may want to
revoke the I-140 in order to use the labor certification and substitute
another foreign national as the beneficiary. There are many reasons an
employer may revoke an I-140. However, none of them is related to the
spirit and intent of AC21 in allowing the beneficiary the freedom to move
to another position and gain approval once the adjudication of the case
has taken half a year or longer.
© The Law Office of Sheela Murthy, P.C.
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MurthyBulletin : VOL. IX, no. 11; Mar 14, 2003
1. Procedures Upon Denial of I-140 in Concurrent Filings
In an INS Memo issued February 28, 2003, the INS (now BCIS) outlined
procedures and policy in the event an I-140 (Immigrant Petition for Alien
Worker) is denied in a concurrently filed I-140/I-485 (Application for
Adjustment of Status) case. Essentially, if the I-140 is denied, the
I-485 will also be denied. The I-485 dependant applications for
Employment Authorization (EAD) and Advance Parole (AP), using Forms I-765 and
I-131, respectively, will also be denied. The reason for this is that,
without an I-140 approval, there is no proper basis for approval of the
I-485.
As regular readers of the MURTHYBULLETIN and MurthyDotCom know, it has
been possible to concurrently file I-140s and I-485s since July 31,
2002. Previously, the I-140 had to be approved before an I-485 could be
filed. This matter was covered in detail in our August 9, 2002 article,
"Concurrent I-140/I-485 Filings Now Allowed"
<
http://www.murthy.com/UD140485.html>, available on MurthyDotCom. It has
long been the case that I-130s (Petition for Alien Relatives) could be
filed concurrently with I-485s, provided approval of the I-130 would
make a visa number available immediately.
Under the terms of the February 28th Memo, the procedures for
processing cases in which I-140s have been denied also apply to family-based
cases in which the underlying I-130 is denied. This has been routine
procedure in family-based cases for many years.
The Memo states that, if the I-140 denial is successfully appealed, the
I-485, I-765, and I-131 can be reopened on Service Motion. This
indicates that the Service would take the necessary steps to reopen the denied
cases, rather than requiring the individual to do so. However, such
actions can take a long time and this puts one into a precarious situation
if the I-485 is denied. The individual will be out of status unless a
valid, nonimmigrant status can be obtained. The filing of an appeal does
not preserve legal status and success can never be presumed nor
guaranteed in any appeal.
Although AC21 is not addressed in the Memo, apparently
it forecloses the argument that, once the I-485 has been pending for 180 days under AC21, the individual is "portable" with or without the approved I-140.
When AC21 became law, concurrent filing was not allowed. Therefore, the
filing of the I-485 could only be based on an approved I-140 and the law
presumed such an approval. Since the law only spoke in terms of
portability after the I-485 was pending for 180 days, it was hoped and argued
that the individual was essentially "free" of the underlying I-140
petition at the 180-day point, whether approved or not. This, therefore, is
an important issue with respect to concurrent filings and the
applicability of AC21.
© The Law Office of Sheela Murthy, P.C.
