USCIS Provides Guidance on Notice To, and Standing For, AC21 Beneficiaries about I-140 Approvals Being Revoked After Matter of V-S-G- Inc.

USCIS issued a policy memo with guidance on the implementation of the AAO adopted decision in Matter of V-S-G- Inc. USCIS will now inform the beneficiary of petitions in certain circumstances including when a notice of intent to revoke is issued. Guidance is effective immediately, and supersedes any existing guidance on this issue.

On November 11, 2017, USCIS adopted as a matter of policy the AAO’s decision in Matter of V-S-G- Inc., which held that beneficiaries who have properly ported under AC21 are affected parties who are entitled to receive notices pertaining to the potential revocation of the approval of an immigrant visa petition due to their ability to port that petition to new employment and a new employer. Now, when USCIS sends a notice of intent to revoke (NOIR) an approval or notice of revocation (NOR) for a Form I-140 (Immigrant Petition for Alien Worker) to the original petitioning employer, we will also inform the beneficiary of that petition in certain circumstances. Beneficiaries will receive such notice in cases where they have filed a Form I- 485 (Application to Register Permanent Residence or Adjust Status) and that I-485 has been pending for 180 days or more and they have already properly requested to port to a new employer.

Under AC21, when the beneficiary of a valid Form I-140 employment-based immigration visa petition files an application to adjust his or her status to that of a lawful permanent resident, and that application remains pending for more than 180 days, the beneficiary may then “port” to a new job if that job is in the same or similar occupational classification as the original one. Codified at section 204(j) of the INA, 8 U.S.C. 1154(j), the provision reads: JOB FLEXIBILITY FOR LONG DELAYED APPLICANTS FOR ADJUSTMENT OF STATUS TO PERMANENT RESIDENCE A [employment-based] petition for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.

As of January 17, 2017, eligible beneficiaries must notify USCIS of their intent to port to new employment by filing a Supplement J to Form I-485, found at https://www.uscis.gov/i-485supj. If the beneficiary ported prior to the implementation of Supplement J, the beneficiary must have affirmatively and properly notified USCIS in writing. USCIS will adjudicate and must make a favorable determination concerning the beneficiary’s porting eligibility in order for the beneficiary to be eligible to receive notices of an intent to revoke or of a revocation. These beneficiaries may file an appeal of or a motion on an adverse decision as an affected party.

Regulations state that USCIS may require the beneficiary to inform USCIS if he or she intends to port and to submit evidence that the new job is in the same or a similar occupation before final action is taken on the pending Form I-485. See 8 C.F.R. 245.25. In light of recent litigation and AC21, USCIS is reinterpreting its regulations governing revocation on notice in 8 C.F.R. 205.2.

By comparison, in instances of automatic revocation based on withdrawal or business termination, an approved I-140 remains valid if at least 180 days have passed since approval prior to the withdrawal request or business termination or an associated adjustment of status application has been pending for 180 days or more at the time of the withdrawal request or business termination, unless the petition’s approval is revoked on other grounds. 8 C.F.R. 205.1(a)(3)(iii)(C) and (D). Additionally, beneficiaries of such petitions retain their priority dates. See Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 FR 82398 (Nov. 18, 2016).

This reinterpretation of the regulations concerning who may participate in visa petition adjudications will now include beneficiaries who have affirmatively and timely demonstrated porting eligibility to USCIS. This reinterpretation, however, is limited only to these beneficiaries.

We are available to represent Employment Based Adjustment of Status Applicants in the following localities: San Diego County including San Diego, Carlsbad, and Escondido; Los Angeles County including Beverly Hills, Los Angeles, West Los Angeles, Burbank, Hollywood, Van Nuys, Whittier, Woodland Hills, and Long Beach; Santa Clara County including San Jose, Milpitas, Santa Clara, and Sunnyvale; Alameda County including Oakland, San Leandro, and Berkeley; Sacramento County including Sacramento, Elk Grove, and Folsom; and Orange County including Santa Ana and Anaheim.

USCIS Provides Guidance on Notice To, and Standing For, AC21 Beneficiaries about I-140 Approvals Being Revoked After Matter of V-S-G- Inc.

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