Helpful Decision for AC21 AOS Portability Applicants

The United States Court of Appeals for the Eleventh Circuit issued an important decision in September 2014 that favorably impacts the legal rights of certain foreign nationals applying to become permanent residents (i.e. “green card” holders). The case addresses the rights of a foreign national who has filed an I-485 adjustment of status (AOS) application and ported to a new employer under the provisions of the American Competitiveness in the Twenty First Century Act (AC21). The court recognized the legal standing of the applicant in this situation to respond to a notice of intent to revoke (NOIR) issued by the U.S. Citizenship and Immigration Services (USCIS) on the underlying I-140 petition.

Background: Kurapati v USCIS

The case, Kurapati v. USCIS, was decided on September 22, 2014. Kurapati involves the unfortunate situation in which the USCIS revokes an approved immigrant petition for alien worker (form I-140), long after the foreign national beneficiary has filed the application for adjustment of status (form I-485). These scenarios typically arise in cases involving I-485 applicants who have used the “portability” option under AC21 to move to a different employer.

I-140 and AC21 AOS Portability Provisions

AC21 AOS portability permits employment-based green card applicants, in certain circumstances, to “port” the green card case to a new employer. To be eligible for this benefit under AC21, the individual must have an I-485 that has been pending for at least 180 days, and be offered a position with job duties that are considered as falling within the same or similar job classification as the position outlined in the underlying labor certification and I-140 petition. Most of these cases are processed to approval without incident. However, problems arise when the government revokes the approved I-140 after determining that the petition should never have been approved.

AC21 cases are based on the concept of the I-140 remaining “valid” with respect to a new job offer. This, in turn, requires that the I-140 was valid, genuine, and proper in all respects at the time of filing. Thus, an AC21 green card case cannot be approved if the government determines that the I-140 upon which it is based was fraudulent or otherwise not eligible for approval when it was filed. This should not be confused with the more common situation in which the employer simply chooses to request revocation of the underlying I-140 petition. More information about AC21 and I-140 revocations is available in the MurthyDotCom InfoArticle, AC21 Frequently Asked Questions.

I-140 Revocations “for cause” by USCIS

In cases where the USCIS plans to revoke a previously approved I-140, a notice of intent to revoke (NOIR) generally must first be issued to the original I-140 employer. The USCIS takes the position that only this petitioner can respond to such a NOIR. The foreign national, in the view of the USCIS, does not have any legal right (or legal “standing”) to submit a response to the NOIR, or even to be notified that a NOIR was issued. Yet, if the foreign national beneficiary has moved to a different employer, the petitioner may have no incentive to respond to the NOIR. In some cases, the petitioning company no longer even exists. If the USCIS does not receive a response, the I-140 almost certainly is revoked. And, if the I-140 is revoked for “cause” (meaning the USCIS determines it was erroneously approved), this almost certainly leads to a denial of the related I-485 case, even if AC21 portability applies.

Beneficiary Challenges I-140 Revocation

The situation presented in the Kurapati case is typical. Mr. Kurapati filed an I-485 application based on his employer’s approved I-140 petition. Later, after the I-485 was pending for more than 180 days, he changed employers and notified the USCIS that he was utilizing AC21 portability. Years later, the USCIS issued a NOIR on the I-140, proposing to revoke the petition for fraud. Mr. Kurapati filed a response to the NOIR, as the company no longer existed. The USCIS revoked the I-140 petition and denied Mr. Kurapati’s pending I-485 application.

Mr. Kurapati attempted to appeal the revoked I-140 petition to the USCIS Administrative Appeals Office (“AAO”). He also filed a lawsuit against the USCIS in a U.S district court. The AAO dismissed the appeal, finding that Mr. Kurapati did not have legal standing to challenge the revocation. The AAO ruled that only the (no-longer-existent) company had the right to file the appeal. The district court dismissed the lawsuit, and Mr. Kurapati appealed that decision to a higher court, the U.S. Court of Appeals for the 11th Circuit.

Court Recognizes Beneficiary’s Legal Standing Under AC21

The appeals court ruled that the decisions by the AAO and the district court were incorrect. The court stated that Congress, in enacting AC21, indicated a desire to protect the right of immigrants to change jobs without having to ‘restart’ the entire immigration process. The appeals court found that Mr. Kurapati, along with his dependent spouse, had each suffered an “injury” from the USCIS revocation of the I-140 petition, as they had lost the opportunity to adjust status and obtain their green cards. This, the Court determined, gave them the right to challenge the I-140 decision.

Direct Impact and Potential Fallout

This decision by the U.S. Court of Appeals for the 11th Circuit applies in the states of Alabama, Florida, and Georgia. Under Kurapati, I-485 applicants in those states who have taken advantage of AC21 portability, now have the legal right to be notified of, and respond to, NOIRs issued on their respective I-140 petitions. This case, and the logic behind the decision, may help others who are fighting for the same legal right in other jurisdictions. Those with questions about how Kurapati may impact a pending case, or who are interested in challenging an adverse finding related to this or other AC21 issues, are encouraged to schedule a consultation with a Murthy Law Firm attorney.

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