03/18/2007: NSC & Concurrently Filed I-140 Denial & Refiling of I-140 Pending Appeal at AAO
Nowadays, I-140 petitions are denied in a large numbers not because of the defects in the underlying certified labor certification applications but because of the employer's financial ability to pay the proffered wage. When the I-140 is denied in the context of current filing of I-140/I-485 and such denial has been appealed to the AAO, question remains whether the petitioner can refile I-140 pending the appeal and what procedure the petitioner should follow. The rules and NSC policies appear to be as follows:
- Denial of I-140 petition does not invalidate the underlying certified labor certification application unless it is invalidated for fraud or revocation. Accordingly the petitioner can refile I-140 petition at any stage.
- However, a single certified labor certification application cannot support two I-140 petitions when one of which supports concurrently filed I-485 application, particularly when the petition is denied and appealed to AAO. For the reason, the NSC requires that the petitioner first withdraws the denied I-140 petition and appeal which is pending at the AAO in order to refile I-140 petition. Otherwise, refiling of I-140 petition will be denied. Once it is withdrawn, the NSC will accept the withdrawal letter and proof of its delivery to the AAO as evidence of withdrawal.
- Once the concurrently filed I-140 is denied, accompanied I-485 is also usually denied by the agency. Thus if I-485 is also denied by the agency, unless the NSC, on its own motion, reopens the decision of denial of I-485 upon reversa of denial of I-140 petition by the AAO, the I-485 application remains denied. Accordingly, if that happens, the parties should also refile I-485 application at the time when new I-140 petition is refiled pending the appeal.
- If I-140 is denied, but for whatever reasons the agency has yet to deny I-485 application, it appears that NSC may exercise a discretion holding the decision of denial of such I-485 application once the parties timely refiles I-140 petition with the proof of withdrawal of pending appeal of I-140 denial before the AAO.
Caveat: The foregoing policy does not answer one critical question of impact of withdrawal of appeal and refiling of I-140 petition and I-485 application on retrogression of the visa numbers. When the NSC requires refiling of I-485 application, one may assume that unless the visa number is available at the time of refiling of I-485 application, one may not be able to file the new I-485 application. Accordingly the withdrawal of denied I-140 and refiling of new I-140 petition in the context of the concurrent I-140/I-485 filing may accompany a huge risk unless the visa number is available when the parties seek such option. Accordingly, people should never, repeat never, take such action unless the circumstances are carefully and thoroughly reviewed by their legal counsels first. The huge risk includes that once one wins on appeal and the agency reopens the denial of accompanying I-485 application, the retrogression at the time of motion to reopen may not affect the "pending" status of I-485 application. However, when the appeal is withdrawn and they will have to file new I-140 petition and I-485 application, depending on the visa number retrogression, they may not be able to file the concurrently new I-140 and I-485 application.
