WHO DESERVES REVOCATION NOTICE IN AC21 PORTABILITY CASES?
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WHO DESERVES REVOCATION NOTICE IN
AC21 PORTABILITY CASES?
By Joseph Patrick Whalen (Tuesday, March 8, 2016)
In light of certain recent federal court decisions, USCIS has been forced to
reconsider the effect of legislative changes upon the agency’s regulations, policies,
procedures, corporate culture; and its adjudicators’ collective psyche.1 The U.S. District
Courts have become mired in a multitude of cases with varying fact patterns concerning
employment-based immigrant visa petition (I-140) revocations. The various Circuit
Courts of Appeals have also definitively weighed in on topic. I now see that there are
differences in certain fundamental aspects depending on the underlying statutes involved
in the case. While there are good reasons why USCIS’ current regulations and procedures
apply to the vast majority of I-140 revocations, it must be recognized that exceptions do
For example, Congress passed the American Competitiveness in the Twenty-First
Century Act of 2000 (AC21) Public Law 106–313, 114 Stat. 1251 (Oct. 17, 2000)2, as
amended, in order to alleviate stresses upon our employment-based immigration system
and beneficiaries of it. In the wake of that legislation, some changes were made to the
agency’s regulations, policies, and procedures. Unfortunately, the courts have come to the
conclusion that the changes made by the agency fell short of the mark. The time has come
for the agency to make further regulatory changes in order to catch up with the statutory
changes. This situation might support a “Direct Final Rule” (DFR) but USCIS did not
choose that option. They could have put forth an “Interim Final Rule” (IFR). The DFR
route is actually less advantageous than an IFR for technical reasons.3 In the end, they
chose a Proposed Rule. This discussion is, in part, a comment on the Proposed Rule.
1 I am also willing to reconsider and expand my view of “who deserves standing” in certain situations, see:
3 See page 9 at: https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf
Interim Final Rule: When an agency finds that it has good cause to issue a final rule without
first publishing a proposed rule, it often characterizes the rule as an “interim final rule” or “interim
rule”. This type of rule becomes effective immediately upon publication. In most cases, the agency
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The stakeholder community has options, they can choose to:
(a.) quietly sit back watch how it unfolds and then, meekly conform thus
(b.) wait for changes and then go on the attack, thereby, being passive-
(c.) fight and negatively criticize USCIS from the very start no matter what
they put forward, thereby being aggressive; or
(d.) be proactive by speaking up and working with USCIS in an
iterative manner in an effort to reach an agreeable solution, i.e., make
an effort to communicate thus being assertive.
Obviously, I am in favor of the final option listed above. This missive is written and
offered in that vein. On December 31, 2015, USCIS, via DHS, published a proposed rule
that includes this subject matter. The following expanded section and new section in
the proposed rule which is found at 80 FR 81899-819454 and of particular relevance to
this discussion is:
§ 205.1 Automatic revocation.
(a) * * *
(3) * * *
(iii) * * *
(C) In employment-based preference cases, upon written notice of withdrawal filed by the
petitioner to any officer of USCIS who is authorized to grant or deny petitions, where the
withdrawal is filed less than 180 days after approval of the employment-based preference
petition, provided that the revocation of a petition’s approval under this clause will not, by
itself, impact a beneficiary’s ability to retain his or her priority date under 8 CFR 204.5(e).
A petition that is withdrawn 180 days or more after approval remains approved unless its
approval is revoked on other grounds. If an employment-based petition on behalf of an
stipulates that it will alter the interim rule if warranted by public comments. If the agency decides
not to make changes to the interim rule, it generally will publish a brief final rule notification in
the Federal Register confirming that decision. (cont’d)
Direct Final Rule: When an agency decides that a proposed rule is unnecessary because it
would only relate to routine or uncontroversial matters, it may publish a direct final rule in the
Federal Register. In a direct final rule, the agency states that the rule will go into effect on
a certain date, unless it gets substantive adverse comments during the comment period. An agency
may finalize this process by publishing in the Federal Register a confirmation that it received no
adverse comments. If adverse comments are submitted, the agency is required to withdraw the
direct final rule before the effective date. The agency may re‐start the process by publishing a
conventional proposed rule or decide to end the rulemaking process entirely.
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alien is withdrawn, the job offer of the petitioning employer is rescinded and the alien must
obtain a new employment-based preference petition on his or her behalf in order to seek
adjustment of status or issuance of an immigrant visa as an employment-based immigrant,
unless eligible for adjustment of status under section 204(j) of the Act and in accordance
with 8 CFR 245.25.
(D) Upon termination of the petitioning employer’s business less than 180 days after
petition approval in an employment-based preference case under section 203(b)(1)(B),
203(b)(1)(C), 203(b)(2), or 203(b)(3) of the Act, provided that the revocation of a petition’s
approval under this clause will not, by itself, impact a beneficiary’s ability to retain his or
her priority date under 8 CFR 204.5(e). If a petitioning employer’s business terminates 180
days or more after approval, the petition remains approved unless its approval is revoked
on other grounds. If a petitioning employer’s business terminates, the job offer of the
petitioning employer is rescinded and the beneficiary must obtain a new employment-
based preference petition on his or her behalf in order to seek adjustment of status or
issuance of an immigrant visa as an employment-based immigrant, unless eligible for
adjustment of status under section 204(j) of the Act and in accordance with 8 CFR 245.25.
[at 81940] (Everything after the highlighted part is new.)
* * * * *
§ 245.25 Adjustment of status of aliens with approved employment-based
immigrant visa petitions; validity of petition and offer of employment.
(a) Validity of petition for continued eligibility for adjustment of status. An alien who has
a pending application to adjust status to that of a lawful permanent resident based on an
approved employment-based immigrant visa petition filed under section 204(a)(1)(F) of
the Act on the applicant’s behalf must have a valid offer of employment based on a valid
petition at the time the application to adjust status is filed and at the time the alien’s
application to adjust status is adjudicated, and the applicant must intend to accept such
offer of employment. Prior to a final administrative decision on an application to adjust
status, USCIS may require that the applicant demonstrate, or the applicant may
affirmatively demonstrate to USCIS, on a designated form in accordance with the form
instructions, or as otherwise determined by USCIS, with any required supporting
documentary evidence, that:
(1) The employment offer by the petitioning employer is continuing; or
(2) Under section 204(j) of the Act, the applicant has a new offer of employment
from the petitioning employer or a different U.S. employer, or a new offer based
on self-employment, in the same or a similar occupational classification as the
employment offer under the qualifying petition, provided that:
(i) The alien’s application to adjust status based on a qualifying petition
has been pending for 180 days or more; and
(ii) The approval of the qualifying petition has not been revoked.
In all cases, the applicant and his or her intended employer must demonstrate the
intention for the applicant to be employed under the continuing or new
employment offer (including self-employment) described in paragraphs (a)(1) and
(2) of this section, as applicable, within a reasonable period upon the applicant’s
grant of lawful permanent resident status.
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(1) Continuing employment offer. Unless otherwise specified on the form or form
instructions, for purposes of paragraph (a)(1) of this section, evidence of a
continuing employment offer shall be provided in the form of a written attestation,
signed by such employer, attesting that the employer continues to extend the
original offer of employment and intends that the applicant will commence the
employment described in the offer of employment within a reasonable period upon
adjustment of status.
(2) New employment offer. Unless otherwise specified by a form or form
instructions, for purposes of paragraph (a)(2) of this section, evidence of a new
offer of employment that is in the same or a similar occupational classification as
the employment offer under the approved petition as required by section 204(j) of
the Act must include:
(i) A written attestation signed by the new employer describing the new
employment offer, including its requirements and a description of the
duties in the new position, and stating that the employer intends that the
applicant will commence the employment described in the new
employment offer within a reasonable period upon adjustment of status;
(ii) An explanation from the new employer establishing that the new
employment offer and the employment offer under the approved petition
are in the same or similar occupational classification, which may include
material and credible information provided by another Federal
government agency, such as information from the Standard Occupational
Classification (SOC) system, or similar or successor system, administered
by the Department of Labor; and
(iii) A copy of the receipt notice issued by USCIS, or if unavailable,
secondary evidence showing that the alien’s application to adjust status
based on such petition has been pending with USCIS for 180 days or more.
(3) Intention after grant of adjustment of status application. Evidence that the
applicant intends to commence the employment described either in the continuing
employment offer or, if pursuing an offer of new employment in accordance with
section 204(j) of the Act, the new employment offer, within a reasonable period
upon adjustment of status, including a written attestation signed by the applicant.
(c) Definition of same or similar occupational classification. The term ‘‘same occupational
classification’’ means an occupation that resembles in every relevant respect the occupation
for which the underlying employment-based immigrant visa petition was approved. The
term ‘‘similar occupational classification’’ means an occupation that shares essential
qualities or has a marked resemblance or likeness with the occupation for which the
underlying employment-based immigrant visa petition was approved. [at 81944]
Recently, in Mantena v. Johnson, -- F.3d -- (2d Cir. 2015) No. 14-2476 Dec. 30,
2015,5 the Second Circuit Court of Appeals explicitly remanded a case back to the District
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Court and implicitly to USCIS’ AAO, due to inadequate notice regarding the revocation of
an I-140 concerning a beneficiary who relied upon the AC21 “portability” provision to
change employers long after filing her form I-485 seeking adjustment of status. See 8
U.S.C. § 1154(j) [INA § 204(j)] and 8 U.S.C. § 1182(a)(5)(A)(iv) [INA § 212(a)(5)(A)(iv)].
Upon remand, the court encouraged supplemental briefing on how the statutory
changes made through AC21 have implicitly changed who is required to be notified of
revocation or intent thereof; and thereby does have standing to assert a claim under
The court noted that USCIS only sent the notice of intent to revoke (NOIR) to a
company it knew, or should have known, was no longer in business. The beneficiary only
learned of the visa petition revocation upon denial of her I-485 adjustment application.
She then had to inform her successor employer, i.e., the successor-in-interest to this
beneficiary based on the employment-based immigrant visa petition (I-140) that named
her and allowed her to file for adjustment of status. The court determined that when
Congress altered the statute, it changed the playing field but the regulations have not kept
pace. The new statutory scheme “…requires that pre‐revocation notice be given either to
the beneficiary or to the successor employer even though they were not the original
petitioning parties.” Id. Slip Op. at p. 2. It is clarity on this point that is suggested as the
topic for supplemental briefing and which is the primary, but not the only, subject of this
article. The proposed new regulation implies that USCIS might handle the matter of
notice of I-140 revocation, for cause, through an RFE for an I-485; or allow for proactive,
voluntary submission of a new or altered, form or supplement. The RFE route is more
advantageous and very fair to the alien and the new “successor” employer because of the
longer time period permitted for a response (90 days). A NOIR6 allows 30 days, and after
revocation there is only a 15 day period to file an appeal.
The original petitioning employer, for whom Ms. Mantena no longer worked, pled
guilty to mail fraud in connection with some other employee’s petition. That event
prompted USCIS to begin revocation proceedings for all of the remaining petitions filed
by that employer. I suppose that it needs to be considered whether any beneficiary was
6 NOIR = Notice Of Intent to Revoke
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culpable in the fraud scheme. Did any beneficiary pay someone to file petitions even if
there was no actual position available at time of filing for an H1-B and/or the later
employment-based immigrant visa petition, as the case may be? These are questions for
the factfinder who might be an adjudicator (Immigration Services Officer) or a fraud
investigator (FDNS Immigration Officer). Now, let us get back to the Mantena case.
Ms. Mantena was, and remains, highly qualified for the classification sought. This
incongruity and seeming injustice swayed the Second Circuit. Additionally, Mantena
involved an I-485 that was filed based upon an I-140 that was preserved and transferred,
in other words, the I-140 moved along with the beneficiary, pursuant to AC21’s
“portability” provision. The original petitioner’s I-140 was later revoked. The
procedures utilized during the revocation were deemed inadequate by the Second
Circuit. It was a specific type of situation unlike ordinary revocations that do not
involve any successor-in-interest who might have bought, or merged with, the original
petitioning employer, nor AC21 portability at all.
These and additional questions have been building for several years, at least and
have gained momentum of late. For instance, on December 22, 2014, the Eleventh Circuit
issued a revised opinion upon rehearing in the case of Kurapati v. USCIS, 775 F.3d 1255
(11th Cir. 2014)7 in which the justices found that an alien beneficiary had standing in the
District Court even though there was no standing to bring an administrative appeal under
USCIS regulations. The issues have been evolving over time. The particulars of Kurapati’s
case involved the revocation of an I-140 petition for an EB-3 worker. The beneficiary filed
for adjustment of status (I-485) and after the I-485 had been pending for nearly two years
(much longer than the 180 days required), he changed employers per the portability
provision of AC21 codified at INA § 204(j) [8 U.S.C. § 1154(j)], which reads:
(j) Job flexibility for long delayed applicants for adjustment of status to
A petition under subsection (a)(1)(D) 4 for an individual whose application for
adjustment of status pursuant to section 1255 of this title [INA § 204] has been filed and
remained unadjudicated for 180 days or more shall remain valid with respect to a new job
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if the individual changes jobs or employers if the new job is in the same or a similar
occupational classification as the job for which the petition was filed.
USCIS revoked the I-140 due to an inability to pay. In fact, the petitioner has gone
out of business. The situation faced by Kurapati involved an original petitioner who was
later discovered to have had an inability to pay and the I-140 was thereby revoked for
good cause shown. The original petitioner for Mantena was later found to have engaged
in deceitful practices which tainted everything they touched. Neither of the original
petitioners put up a fight. In Kurapati, the employer was unqualified to file which meant
that the I-140 was never valid and as such could not “remain valid” which is a prerequisite
for AC21 porting. In Mantena, the employer was only shown to have been deceitful in
someone else’s case rather than Mantena’s. It was never demonstrated whether or not
Mantena’s I-140 was originally valid for purposes of AC21 porting which is partly why the
2nd Circuit remanded the case. I also observed that USCIS managed to write a Proposed
Rule that addresses and seeks to implement AC21 portability without making reference
to Matter of Al Wazzan, 25 I&N Dec.359 (AAO 2010) which is the only Administrative
Precedent that addresses the question of I-140 validity in the context of AC21 portability.
Patel v. USCIS, 732 F.3d 633 (6th Cir. 2013)8 deals with the questions relating to
the zone of interests analysis portending prudential standing in a Title III court, i.e., the
U.S. District Courts overseeing live cases with actual controversies. Patel and Kurapati
have some similarities in that they find that beneficiaries of visa petitions, especially when
they are also applicants for adjustment of status, have standing to bring APA challenges
in District Courts even if excluded from administrative appeal proceedings.
On January 29, 2015, a District Court Judge issued a decision in Musunuru v.
Holder, 81 F. Supp. 3d 712 (E.D. WI 2015)9 which differed from what the 2nd Circuit would
decide approximately eleven months later. In Musunuru, the alien beneficiary sought
standing to challenge the revocation of an I-140 that had been filed by the same employer
as had filed on behalf of Mantena. Musunuru, on the other hand, had a new employer who
had filed a new labor certification application with DOL and got a new priority date. The
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2nd employer filed for an EB-2 visa classification whereas, the 1st employer had filed for
an EB-3 visa classification. Since the 1st employer had pled guilty to fraud and the 1st I-
140 was revoked, the earlier priority date was not retained.
In Vemuri v. Napolitano, 845 F. Supp. 2d 125 (D.D.C. 2012)10 the challenge to the
I-140 visa petition and associated applications were dismissed for lack of subject matter
jurisdiction. This I-140 was denied due to inability to pay the wage.
In Bernardo v. Johnson, -- F.3d -- (1st Cir. 2016) [No. 15-1177-January 29, 2016]11
a USCIS-AAO I-140 revocation was upheld. In this case, it was determined that the
revocation statute involves discretion and thereby, the Courts have been stripped of
jurisdiction to review. Depending on the course of attack, we are seeing a variety of
variations on a theme.
Hopefully, the additions to 8 CFR §§ 205.1 and 245.25, the latter of which is
completely new, will help to clarify matters and settle some uncertainties. These two
sections must be read together along with the appropriate sections within the INA. Even
though the new regulatory language is helpful, it still falls short of the mark. There is still
work to be done in order to explicitly allow for rebuttal by new employers. New employers
can join the process through AC21 portability; or from the longstanding and recognized
successors-in-interest to a business and any and all of their pending petitions. See Matter
of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm. 1987). It may be helpful to read
the Proposed Rule along with the following.
8 CFR §205.2 Revocation on notice.
(a) General. Any Service officer authorized to approve a petition under section 204 of the
Act may revoke the approval of that petition upon notice to the petitioner on any ground
other than those specified in §205.1 when the necessity for the revocation comes to the
attention of this Service.
(b) Notice of intent. Revocation of the approval of a petition of self-petition under
paragraph (a) of this section will be made only on notice to the petitioner or self-petitioner.
The petitioner or self-petitioner must be given the opportunity to offer evidence in support
of the petition or self-petition and in opposition to the grounds alleged for revocation of
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(c) Notification of revocation. If, upon reconsideration, the approval previously granted is
revoked, the director shall provide the petitioner or the self-petitioner with a written
notification of the decision that explains the specific reasons for the revocation. The
director shall notify the consular officer having jurisdiction over the visa application, if
applicable, of the revocation of an approval.
(d) Appeals. The petitioner or self-petitioner may appeal the decision to revoke the
approval within 15 days after the service of notice of the revocation. The appeal must be
filed as provided in part 3 of this chapter, unless the Associate Commissioner for
Examinations exercises appellate jurisdiction over the revocation under part 103 of this
chapter. Appeals filed with the Associate Commissioner for Examinations must meet the
requirements of part 103 of this chapter.
[48 FR 19156, Apr. 28, 1983, as amended at 58 FR 42851, Aug. 12, 1993; 61 FR 13078, Mar.
* * * * *
8 CFR §204.5 Petitions for employment-based immigrants.
(e) Retention of section 203(b) (1), (2), or (3) priority date. A petition approved on behalf
of an alien under sections 203(b) (1), (2), or (3) of the Act accords the alien the priority date
of the approved petition for any subsequently filed petition for any classification under
sections 203(b) (1), (2), or (3) of the Act for which the alien may qualify. In the event that
the alien is the beneficiary of multiple petitions under sections 203(b) (1), (2), or (3) of the
Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections
204(e) or 205 of the Act will not confer a priority date, nor will any priority date be
established as a result of a denied petition. A priority date is not transferable to another
The new regulatory language found in the proposed § 245.25 is a good start but
could be clearer. The final sentence in paragraph (a) has too many clauses. The inclusion
of a reference to a form is nice but is confusing. In short, it is too wordy.
Prior to a final administrative decision on an application to adjust status, USCIS may
require that the applicant demonstrate, or the applicant may affirmatively demonstrate to
USCIS, on a designated form in accordance with the form instructions, or as otherwise
determined by USCIS, with any the applicant will be required to submit supporting
documentary evidence, as directed by USCIS, that:
Prior to a final administrative decision on an application to adjust status, the applicant will
be required to submit supporting documentary evidence, as directed by USCIS, that:
The verbiage pertaining to any new form or supplement is better relegated to the
paragraph devoted to evidence. I suggest the addition of a preliminary clause with general
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Granted, the offered language below may be insufficient but it is a start.
(1) In General. Submissions of evidence shall be in the manner proscribed by USCIS and
accompanied by any form so designated for the purpose in adherence to that form’s
instructions. Any such form shall be made available on the USCIS website.
In closing I wish to draw a comparison to another “ameliorative” statute Congress
passed, and has renewed several times. It is illustrated by what the Ninth Circuit found in
Valencia v. Lynch, --F. 3d—(9th Cir. 2016) [No. 13-70414 February 3, 2016].12 Valencia
dealt with the “…denial of adjustment of status under a regulation that precludes an alien
substituted for the previous beneficiary of a labor certification application after a sunset
date from claiming to be a grandfathered alien.” Slip Op. Summary13 at p. 2. The
“ameliorative” statute involved was INA § 245(i) [8 U.S.C. § 1255(i)14], also known as the
“penalty” provision due to the extra fee. The uninitiated readers might be scratching their
heads and wondering how a “penalty” can be “ameliorative”. The answer is because it
allows folks who would otherwise be prohibited from adjusting status to do so if they meet
certain conditions set by Congress in the statute and further explained by INS (now
USCIS) in the implementing regulations.
The target “customers” for § 245(i) benefits are individual aliens unlawfully
present in the U.S. who are beneficiaries of a valid immigrant petition or, as was at issue
in Valencia, a permanent labor certification application (labor cert.) filed on their behalf
by the sunset date, most recently the latest date was on or before April 30, 2001. In the
case of a labor cert, there may have been some genuine confusion once upon a time
because it used to be common for a new beneficiary15 to be substituted for the original
beneficiary. However, the ameliorative effects of this statute, INA § 245(i), was targeted
at the person/beneficiary/alien, and therefore, it is non-transferable to another
13 The summary constituted no part of the opinion of the court. It was prepared by court staff for the
convenience of the reader.
15 The proposed alien employee named on a labor cert would later become the beneficiary name on an
employment-based visa petition (form I-14o).
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person/beneficiary/alien. This interpretation is bolstered by the fact that the
person/beneficiary/alien is legally allowed to have a new labor cert or petition filed on
their behalf by a new employer or relative and be “grandfathered” into § 245 (i) eligibility.
The prerequisite for grandfathering is to have had a labor cert or visa petition filed on
one’s behalf on or before the sunset date and it must have been “approvable when filed”.
It is not the job offer, labor cert, or I-140 that is grandfathered, those documents, if valid
and “approvable when filed” merely serve as pieces of evidence for the beneficiary to be
grandfathered. U.S. employers can file labor certs and I-140s to their heart’s content. That
is, after all, the purpose of the employment-based portion of our immigration system.
Dated this 8th of March 2016
/s/ Joseph Patrick Whalen