I-485 Approval After I-140 Revocation
Posted Jun 28, 2002

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 The I-140 was revoked after the I-485 had been pending for 180 days.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.