Employee Considered “Affected Party” in I-140 Revocation Proceedings

Early this November, the Administrative Appeals Office (AAO) in Matter of V-S-G- Inc, recognized that an employee waiting for the approval of an adjustment-of-status application (Form I-485) has a constitutionally protected interest in their underlying immigrant petition (Form I-140). Therefore, the Matter of V-S-G- Inc. allows beneficiaries of employment based visa petitions, who are eligible to ‘port’ under American Competitiveness in the Twenty First Century Act (AC21), to receive DHS “affected party” status in matters of revocation proceedings of petition previously filed on behalf of the beneficiary.

The Case

In the early 2000’s, Vision Systems Group Inc. (V-S-G- Inc.) petitioned USCIS to employ the Beneficiary, an Indian national, as a software engineer. Subsequently in 2006, the company filed, and was approved, for the I-140 petition. While still employed with V-S-G- Inc., the Beneficiary filed an I-485 form to adjust status in the US. While waiting for the I-485 approval, the Beneficiary’s priority date retrogressed, and his application was put on hold. During these waiting years, the beneficiary decided to “port” or transfer to a new company for employment in a same or similar position, as permitted under portability provisions of AC21.

However, while the beneficiary awaited approval of the form I-485, the president of V-S-G- Inc. was convicted of mail fraud in a different matter with the USCIS. Subsequently, USCIS began revocation proceeding for all petitions filed by V-S-G- Inc., including the I-140 petition filed on behalf of the Beneficiary. Soon thereafter, the Beneficiary received a Notice of Intent to Revoke (NOIR) the previously approved form I-140 which jeopardized his I-485 application.

Ruling

Before Matter of V-S-G-, Beneficiaries that received revocation notices of original I-140 did not have the opportunity to participate in I-140 revocation proceedings. However, in the Matter of V-S-G- Inc., the court ruled Beneficiaries may appeal or file a petition to reopen or reconsider the revocation of I-140. Additionally, Beneficiaries who were eligible to ‘port’ under AC21 can participate in proceedings for appeal or motion filed by the Petitioner. This ruling will give beneficiaries who have ported to another company the opportunity to participate in a I-140 revocation proceeding, enabling applicants to have more power over their visa processing.