Matthew Oh Attorney Reporting(
www.immigration-law.com)
10/23/2008:
Increasing Customer Reports of Denial of AC-21 Ported I-485 Applications Without NOID by USCIS Upon Petitioner's Withdrawal of Approved I-140 Petitions
USCIS Adjudicator Field Manual (AFM) Section 20.2(c) which incorporated the so-called AC-21 Memorandums released by Yates, Ayes, and Neufeld indicates that AC-21 ported I-485 must be denied if the petitioning employer withdraws the approved underlying I-140 petition if the alien ports before 180 days of I-485 filing, but if the employer withdraws the approved I-140 petition for the alien beneficiary who ports after 180 days of filing of I-485 application, such I-485 application should not be denied. The Memorandums and the AFM further provide that when the agency has no record of the ported alien's proactive report of AC-21 portability report in the file when the petitioner's withdrawal is received, the agency "must" issue Notice of Intent to Deny (NOID) pending I-485 applications rather than outright denial of I-485 applications.
At the outset, we must clarify one key point here. The memorandums and AFM are neither rules nor laws and have no legally binding force. No one will dispute on this point. However, the memorandums and AFM provide guidance and internal processing standards for the adjudicators, which the petitioners and the beneficiaries of petitions and applicants rely on as the guidance, policy, and practice of the agency. For these reasons, even though the menrandums and AFM are not legally binding, the adjudicators should adhere to the guidance to meet the expectation of the customers.
We have no detailed information on the reasons for reported denials of the ported I-485 applications. At this point, all we can discuss are the potential causes and reasons for denials.
Issue of Employer's Intent of Continuing Offer of Employment or Alien Employees' Retaining Continuing Intent to Work for the Petitioning Employer at the Time of Approval of I-140 Petitions: The Memorandums and AFM provide that "throughout" the process, the petitioning employer and the alien employee must retain this "intent" at least "at the time of approval of I-140 petitions." Employer's statement of withdrawal and accompanying materials may offer some evidence for the agency to reviisit the approved I-140 petition and revoke the approved I-140 petition on these issues. Such decision comes within the authority of the agency as inerpreted by the agency in the form of Memorandums and AFM. We cannot dispute with such decision.
Issue of Failure to Issue NOID Before Denial of I-485 Applications: As we discussed earlier, the alien beneficiary may rely on the Memorandums and AFM and expect to receive a NOID and an opportunity to provide the evidence that establish the eligibility for the portability. The problem is a narrow reading of NOID obligation for the agency under the Memorandums. Arguably, the Memorandums mandate the adjudicators to issue a NOID to collect the evidence of the beneficiary's porting and evidence of eligibility for the porting. However, the foregoing issue of "intent" of the employer and the employee for the petitioned employment appears to fall outside of the AC-21 portability rules. It is more or less the fundamental rule and law of the employment-based immigration petitions and applications.
Issue of Revocation of I-140 Petition for "Good Cause" By the Agency Rather Than Employer's Withdrawal: It is clear that the agency cannot deny I-485 for revocation of the approved I-140 petition simply based on the employer's "withdrawal" of petition. However, the agency is authorized to revoke the approved I-140 petition based on "good cause" including frauds, misrepresentation, and belatedly detected facts that would have caused the adjucators to deny I-140 petitions, had the adjudicators have the information at the time of adjudication of I-140 petition. Again, if the agency denied I-485 applications on such grounds, it appears that the Memorandums and AFM do not mandate the agency to issue NOID before revocation of the petition and/or denial of accompanying I-485 applications.
The real concern involves a question as to whether or not recent denials of ported I-485 applications have been caused by the newly hired adjudicators who are still in training stage. If it turns out that it is a training issue, the USCIS should quickly come forward to correct such problems which unjustly cause the consumers expensive and time-consuming remedial action in the form of motion to reopen or motion to reconsider or even appeal.
