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, 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 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, 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.
