We are pleased to share with you a recent victory at The Law Office of
Sheela Murthy, P.C. (LOSM) under the American Competitiveness in the
Twenty First Century Act (AC21) portability provisions. This issue is of
concern to many in the immigrant community, employers, and those
employees who have been laid off or otherwise terminated and wish to take
advantage of the AC21 portability provisions.
We previously addressed the issue of obtaining an approval of the
Application for Adjustment of Status (Form I-485) even after the immigrant
petition (I-140 approval) is revoked by the sponsoring employer. The INS
has stated that, under AC21, the revocation of an I-140 by an employer
will not prevent an I-485 approval, if the I-485 has been pending for
180 days or longer at the time of the revocation. During several
meetings, the INS has verbally confirmed that the 180 days for revocation is
measured as of the time the INS acts on the revocation, rather than the
date of the employer\'s request for revocation.
We recently were able to obtain the approval of an I-485 that had been
incorrectly denied by the INS due to a revocation of the underlying
I-140 petition by the sponsoring employer. We agreed to help with
processing this case after several other attorneys had advised the client that
there was no way to obtain an approval when the employer had revoked
the underlying I-140 petition while the I-485 is pending. They apparently
had advised that the entire green card process would have to begin all
over again. We took on the representation of this case while the I-485
was already pending with the INS.
In this situation, the employer had filed for bankruptcy, which came to
the attention of the INS. The I-140 was revoked after the I-485 had
been pending for 180 days. Thereafter, the INS denied the I-485 based upon
the revocation of the I-140. The INS issued neither a Notice of Intent
to Deny nor a Request for Evidence on the I-485. Had they issued
either, the applicant may have been able to establish eligibility for
approval under AC21. As regular MURTHYBULLETIN and MurthyDotCom readers are
aware, AC21 allows for the possibility of continuing the case through a
"same or similar" job offer with another employer. Therefore, the proper
approach would have been for INS to issue a Notice of Intent to Deny or
a Request for Evidence on the I-485 and to give the applicant a chance
to show legal basis for continuation of the case. Instead, the INS
simply denied it outright.
LOSM filed a Motion to Reopen / Reconsider the denied I-485, based upon
AC21. Fortunately, the client had located the required "same or
similar" new employment, as set forth under AC21. Consistent with the INS
announcements regarding the ability to continue such cases after I-140
revocation, the California Service Center promptly granted our Motion and
the I-485 application as well. Needless to say, our client is thrilled
with the outcome and so are we.
Sheela Murthy, P.C. (LOSM) under the American Competitiveness in the
Twenty First Century Act (AC21) portability provisions. This issue is of
concern to many in the immigrant community, employers, and those
employees who have been laid off or otherwise terminated and wish to take
advantage of the AC21 portability provisions.
We previously addressed the issue of obtaining an approval of the
Application for Adjustment of Status (Form I-485) even after the immigrant
petition (I-140 approval) is revoked by the sponsoring employer. The INS
has stated that, under AC21, the revocation of an I-140 by an employer
will not prevent an I-485 approval, if the I-485 has been pending for
180 days or longer at the time of the revocation. During several
meetings, the INS has verbally confirmed that the 180 days for revocation is
measured as of the time the INS acts on the revocation, rather than the
date of the employer\'s request for revocation.
We recently were able to obtain the approval of an I-485 that had been
incorrectly denied by the INS due to a revocation of the underlying
I-140 petition by the sponsoring employer. We agreed to help with
processing this case after several other attorneys had advised the client that
there was no way to obtain an approval when the employer had revoked
the underlying I-140 petition while the I-485 is pending. They apparently
had advised that the entire green card process would have to begin all
over again. We took on the representation of this case while the I-485
was already pending with the INS.
In this situation, the employer had filed for bankruptcy, which came to
the attention of the INS. The I-140 was revoked after the I-485 had
been pending for 180 days. Thereafter, the INS denied the I-485 based upon
the revocation of the I-140. The INS issued neither a Notice of Intent
to Deny nor a Request for Evidence on the I-485. Had they issued
either, the applicant may have been able to establish eligibility for
approval under AC21. As regular MURTHYBULLETIN and MurthyDotCom readers are
aware, AC21 allows for the possibility of continuing the case through a
"same or similar" job offer with another employer. Therefore, the proper
approach would have been for INS to issue a Notice of Intent to Deny or
a Request for Evidence on the I-485 and to give the applicant a chance
to show legal basis for continuation of the case. Instead, the INS
simply denied it outright.
LOSM filed a Motion to Reopen / Reconsider the denied I-485, based upon
AC21. Fortunately, the client had located the required "same or
similar" new employment, as set forth under AC21. Consistent with the INS
announcements regarding the ability to continue such cases after I-140
revocation, the California Service Center promptly granted our Motion and
the I-485 application as well. Needless to say, our client is thrilled
with the outcome and so are we.