I-140 Revocation Does Not Always Preclude I-485 Adjudication
Posted Jul 09, 2003

As many of you know, the American Competitiveness in the 21^st 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), MurthyChat answers (available by searching MurthyChat transcripts), and on the MurthyForum. 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 concerned.