I-140 Revocation Impermissible if Beneficiary is in U.S.
Posted Aug 27, 2004
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An August 2, 2004, the Court of U.S. Appeals, Second Circuit, in the case of Firstland International, Inc. v. Ashcroft, found that the Immigration and Nationality Act does not permit the USCIS to revoke an approved I-140 petition if the beneficiary has entered the United States. This means that, if an I-140 petition is approved and the beneficiary is in the U.S. or comes to the U.S. before the USCIS gives notice that it intends to revoke the I-140 petition, the revocation will not be effective. This addresses only USCIS initiated actions to revoke I-140s such as when an I-140 petition is approved and, at some later stage, the USCIS reviews it and comes to the conclusion that the prior approval was in error. In that event, they would issue a Notice of Intent to Revoke, with a very short response time.
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This should not be confused with situations in which the employer chooses to revoke the offer of employment and the I-140 petition. The decision in no way limits the power of the employer to take this action.
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This is a well-conceived opinion by the Second Circuit Court of Appeals. The Second Circuit has jurisdiction only over the states of Connecticut, New York, and Vermont, however. This means that other circuits do not have to follow the decision of this case. When a federal circuit court of appeals issues such a decision, it nevertheless can positively impact decisions of other federal courts on a same or similar issue.