BCIS Memo on I-485 Portability After I-140 Revocation
Posted Aug 12, 2003
New Job Must Be "Same or Similar"
The Memo states that if the I-140 petition has been approved and the I-485 applicant takes a new job in a "same or similar" position after the I-485 application has been pending 180 days or longer, then the underlying I-140 petition remains valid under AC21. In a footnote, BCIS mentions that the underlying Labor Certification also remains valid if the same conditions are satisfied.
If the I-485 has been pending fewer than 180 days, then the approved I-140 petition shall not remain valid and shall not entitle the foreign national to work with a new employer or in a new job under AC21.
Revocation or Withdrawal of the I-140 Petition
The Memo provides that the approved I-140 petition remains valid even if the original sponsoring employer requests its revocation, as long as the I-485 application has been pending at least 180 days at the time of the revocation or withdrawal.
Evidence of New Job Must Be Submitted to BCIS
In cases where the I-140 is revoked, the Memo states that it is "expected" that the foreign national will have submitted evidence of qualifying new employment which is the "same or similar" to the position as with the original sponsoring employer. If that evidence has been submitted, the adjudicating officer may simply adjudicate the case as though the approved I-140 petition had never been withdrawn.
If the I-485 applicant has not yet submitted evidence of a new job offer when the I-140 petition is revoked or withdrawn, the adjudicating officer is directed to issue a Notice of Intent to Deny (NOID). The disadvantages of a NOID have been discussed under, "Analysis and Conclusion," below.
If the applicant responds to the NOID with proof of a new "same or similar" job within the time allotted on the NOID, the case may be favorably adjudicated, notwithstanding the revocation of the I-140 petition. If, however, the applicant is unable to provide evidence of a qualifying new AC21 employer showing that the new position is indeed a "same or similar" job, the I-485 application may be immediately denied.
Employer's Revocation of I-140 before 180 Days
If the I-140 is revoked prior to the 180-day point or prior to approval of the I-140 petition, then the I-140 petition is no longer valid and the I-485 will have no basis for approval under AC21.
No Need to Work for Sponsoring Employer to Use AC21
the BCIS Memo uses the incorrect term "withdrawal" instead of revocation in various sections of this Memo, which causes some confusion. The term "withdrawal" is used in the context where a petition is pending with the BCIS and not yet approved. An employer or an applicant may request a withdrawal in cases where there is no final decision on the petition or application. After the approval of a petition, the employer may only request that the I-140 petition be revoked.
Finally, by requiring the BCIS to issue a NOID instead of an RFE regarding evidence of the new employment being the "same or similar", the I-485 adjustment applicant enjoys lesser rights and privileges. A NOID is not a denial, nor is it merely a Request for Evidence (RFE). It is a notice advising that the BCIS intends to deny the case, unless they receive information to overcome their intention. Generally, NOIDs have a shorter response of only 30 days time, compared to an RFE, which generally enjoys 12 weeks time to respond.
This would be problematic for applicants that are between jobs when the NOID arrives and are unable to find the required qualifying employment for AC21 portability before the NOID deadline. Also, with a NOID, the foreign national is not allowed to merely request a withdrawal of the I-485 application as with an RFE. By filing a withdrawal request, a person is deemed not to have filed the petition or application under law and, therefore, the person does not have a final adverse decision on the case. The term "withdrawal" has been explained above in this section. By failing to respond to the NOID, the BCIS will deny the case at the end of the 30 days.
