AC21 Update: USCIS Will Notify Both Employers and Beneficiaries of Possible I-140 Revocation

By: Elizabeth Goings

What Should Employers Know?

  • Starting November 17, 2017, in situations where the beneficiary has properly ported under AC21 and USCIS issues a notice on the I-140 revocation, both the original employer and the beneficiary will be notified. Both will be given the chance to respond to the NOIR (Notice of Intent to Revoke) or NOR (Notice of Revocation).  Additionally, any motions and appeals may also be filed separately by both parties.
  • In situations where the beneficiary has not properly ported under AC21, the traditional petitioner and beneficiary relationship exists and the beneficiary is not entitled to the NOIR or NOR.

When USCIS May Consider I-140 Revocation:

  • A USCIS material error in approving the petition
  • Fraud or willful misrepresentation of a material fact
  • Lack of bona fide job offer, including off-site work that may not be consistent with the work address(s) on the labor certification.
  • Other omissions or new adverse information
  • Revocation or invalidation of a labor certification.

NOTE: The above list is not exhaustive.

How Did USCIS Determine This?

USCIS recently adopted a recent AAO decision as a Policy Memorandum to help adjudicators determine when the beneficiary of an approved Form I-140 may be notified of possible revocation.  In Matter of V-S-G Inc., the AAO held that beneficiaries who properly port under AC21 are “affected” parties who are entitled to receive and respond to USCIS I-140 revocation notices.  In a situation where portability does not occur, these notices are typically issued directly to the employer by regulation.  Beneficiaries are not notified and are prohibited from responding to USCIS.  This is because the adjustment application depends on the continuing validity of the underlying I-140 immigrant petition which is under the employer’s control.

However, when the beneficiary has properly ported under AC21, Matter of V-S-G Inc. recognizes that a properly ported beneficiary may no longer be tied to the original I-140 employer. Nevertheless, the beneficiary may continue to have an interest in the originally approved I-140 petition—regardless if the original employer does not.  In this narrow holding specific to AC21 beneficiaries, AAO recognized the purpose of the AC21 framework and considered the practicality and flexibility it provides.

 What Will the Notices Look Like?

As a result of the USCIS adopted Matter of V-S-G Inc., in its Policy Memorandum, USCIS stated it may issue separate and different versions of NOIRs or NORs to a petitioner and beneficiary when necessary to protect personal and/or proprietary information.  For more information regarding what may be contained in the notices, please refer to the USCIC Policy Memoranda below.

References:

USCIS Policy Memorandum PM-602-0149 (November 11, 2017)

USCIS Policy Memorandum PM-602-0152 (November 11, 2017)

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