VOL. IX, no. 28; July 2003, week 2
Posted : July 11, 2003
TOPICS in this Edition of the MURTHYBULLETIN :
1. I-140 Revocation Could Result in I-485 Approval
1. I-140 Revocation Could Result in I-485 Approval
As our regular readers know, the American Competitiveness in the 21st
Century Act, which became law in October 2000, allows employees to
continue to process their I-485s towards the green card even if they no
longer work for the original sponsoring employer. We have written about
this issue in various MURTHYBULLETIN articles (available by searching
MurthyDotCom <
http://www.murthy.com/search.html>), MurthyChat answers
(available by searching MurthyChat transcripts
<
http://www.murthy.com/chatdb.html>), and on the MurthyForum
<
http://www.murthy.com/mforum.html>. Recently, the BCIS clarified their
interpretation under AC21 on the revocation of the underlying I-140
petition if the I-485 has been pending for over 180 days.
Attorney Murthy's July 3, 2003 discussion with Efren Hernandez, the
Director of the Business and Trade Section at BCIS Headquarters, confirmed
the long-standing BCIS / Legacy INS interpretation that senior
officials from BCIS Headquarters, including William R. Yates and Fujie Ohata,
have discussed with us at various AILA conferences and meetings. The
policy is that, under AC21, the revocation of the underlying I-140
petition after the I-485 has been pending for 180 days or longer, cannot be
the sole basis for the denial of the I-485 application. Thereafter, on
July 8, 2003, a previously issued BCIS advisory letter dated April 24,
2002, also written by Efren Hernandez, was recently released by AILA,
addressing this issue and confirming the position of the BCIS that the
I-485 cannot be denied solely on the basis of the I-140 revocation if the
I-140 petition was previously approved and the I-485 was pending for
180 days or longer.
Under AC21, the concept of I-485 portability permits a foreign
national, who has an approved I-140 petition and has had an I-485 Application
for Adjustment of Status pending for 180 days or longer, to switch to a
new employer or job, as long as the new position is in the same or a
similar job occupational classification. After a change in employers, the
original employer sometimes will revoke the underlying I-140 petition
for various reasons. The BCIS Regional Service Centers in Vermont,
Nebraska, Texas, and California, sometimes have improperly denied these
I-485 Applications for Adjustment of Status based solely on the revocation
of the underlying I-140 petition.
AC21 appears to be clear that an employment-based petition and
supporting labor certification remain valid with respect to a new job offer if
the foreign national changes jobs or employers, as long as the new job
is in the "same or similar" field and the adjustment application has
been filed and remains unadjudicated for 180 days or longer. The
subsequent revocation of the I-140 petition should be irrelevant if it occurs
after the I-140 petition has been approved and the I-485 has been
pending for a minimum of 180 days. It simply should not matter whether the
original sponsoring employer decides to revoke the underlying I-140
petition for use by another employee or for a reason like layoff or
termination, or even due to the employer's going out of business, since AC21
seems to allow both the employer and the employee to take advantage of
the same I-140 petition if the I-485 has been pending with the BCIS/INS
for over 180 days and all other conditions have been satisfied for
portability of the I-485 application under AC21. We at The Law Office of
Sheela Murthy are pleased to share this update with our readers since we
continually work to proactively address important issues with concerned
government officials for the benefit of all.
© The Law Office of Sheela Murthy, P.C.
---------------
**** If you read above still many get confused, Murthy still says that if I-140 is revoked and I-485 pending more than 180 days one can use AC21
in the above attached letter by Efien Hernadez, Director, Buisness and Trade services
it clearly says that if I-485 is pending more than 180 days and I-140 is revoked after that then one can use AC21
Murthy says I-140 revokation will have no affect if I-140 was approved and I-485 was filed and pending more than 180 days.
*** She is not clear if :
for Employee I-140 was approved and then I-485 was filed and Employer revoked I-140 after say 70 days after filing of I-485 and I-485 crosed more than 180 days. employee joined new employer similar/same job duties.
Murthy is silent on this, she posts
"AC21 appears to be clear that an employment-based petition and
supporting labor certification remain valid with respect to a new job offer if
the foreign national changes jobs or employers, as long as the new job
is in the "same or similar" field and the adjustment application has
been filed and remains unadjudicated for 180 days or longer. The
subsequent revocation of the I-140 petition should be irrelevant if it occurs
after the I-140 petition has been approved and the I-485 has been
pending for a minimum of 180 days. It simply should not matter whether the
original sponsoring employer decides to revoke the underlying I-140
petition .
**** Still confusion for those whose I-485 pending more than 180 days but I-140 revoked before 180 days. It is not clear from Murthy .
The letter from BCIS clearly states that approved I-140 should be pending for 180 days after filing of I-485 and I-485 should be pending more than 180 days with valid I-140( not Revoked)
