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Consequences Of I-140 Revocation And I-485 Portability

An adjustment of status applicant may still enjoy I-485 portability under the American Competitiveness in the 21st Century Act (AC21), even if their approved I-140 is revoked by the sponsoring employer. Shihab & Associates, Co., LPA has always interpreted the I-485 portability under section 106(c) of the Immigration and Nationality Act to not require employees to necessarily remain with the employer who petitioned the labor certification and/or the I-140. Accordingly, if the I-140 petition has been approved and the employer subsequently revokes that petition, the non-immigrant is still eligible to adjust status so long as their I-485 application has been pending for 180 days or longer and they take a new job in a "same or similar" position.

If these conditions are satisfied, the Labor Certification that was originally filed would remain valid. However, if the I-485 has been pending fewer than 180 days, then the approved I-140 petition is not considered to be valid anymore, and will not enable the foreign national to work with a new employer or in a new job under AC21. Those who chose concurrent filing enjoy an advantage, as they are accruing time toward the 180 days while their I-140 is pending, as long as it is finally approved.

In the event an I-140 is revoked, but 180 days have passed without adjudication of their I-485, the foreign national should submit evidence of qualifying new employment which is the “same or similar” to the position with the original sponsoring employer. If such evidence is submitted, Immigration may simply adjudicate the I-485 as though the approved I-140 petition had never been revoked. If the I-485 applicant has not yet submitted evidence of a new job offer in the same or similar field when the I-140 petition is revoked, a Notice of Intent to Deny (NOID) may be issued. However, if the applicant responds to the NOID with the necessary 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. Failure to respond with evidence of a qualifying new employer may result in the immediate denial of the I-485.

A finding of fraud, before or after the 180 day mark, is a scenario that may also result in the immediate denial of the I-485. Keep in mind that the I-485 applicant does not have to have worked or be presently working for the original sponsoring I-140 employer in order to benefit from AC21 portability. To avoid a finding of fraud, the offer of employment by the sponsoring employer must be bona fide and the prospective employer must also have had the requisite intent to actually hire the foreign national when the I-140 was approved. Shihab & Associates, Co., LPA would like to remind all employees seeking to take advantage of I-485 portability, that it is not advisable to file labor certificate applications, I-140 or I-485’s unless both the employer and the employee both have good faith intent to work with each other. Absent such intent, the portability provisions do not extend to fraudulent arrangements.

However, there are a few areas of ambiguity. For example, Immigration has not provided definite policy on what the measuring date for revocation ought to be. It could be either the date Immigration acts upon the employer’s request to withdraw or revoke the I-140 or it may be the actual date of the employer’s request to Immigration to withdraw or revoke the I-140. This seemingly minor discrepancy in dates has the potential to impact the 180 day requirement.

Shihab & Associates, Co., LPA would like to urge all employees who want to take advantage of the I-485 portability provision to contact their attorneys as soon as they decide to change jobs and when 180 days have elapsed since the filing of their I-485. It is imperative that evidence be submitted to immigration detailing how the new position is the same or similar position as the approved I-140.In doing so, the employee may be able to be vest into him or herself the previously approved I-140 even though the originally petitioning employer may file notice to revoke the approved I-140 petition.