Foreign Beneficiary May Challenge Revocation of I-140 Immigrant Petition
One of the most widely used provisions of American Competitiveness in the Twenty First Century Act (AC21) is the portability provisions that permits employment-based green card beneficiaries to move the green card application to a new employer provided certain conditions are met.
The United States Court of Appeals for the Eleventh Circuit with jurisdiction over federal cases originating in the states of Alabama, Florida, and Georgia in Kurapati v. USCIS, has ruled that a foreign worker may challenge revocation of his former employer’s immigrant (Form I-140) petition on his behalf. Sunil Kurapati was employed by Worldwide Web Services, Inc. (Worldwide). Worldwide completed the first two steps required under the Immigration and Nationality Act (INA) to permanently employ Kurapati, obtaining approval of both a permanent labor certification application from the DOL and I-140 visa petition from the USCIS.
Kurapati’s I-140 was approved, and some time later when the priority date became current, Kurapati and his wife submitted their I-485 applications for adjustment of status in August 2007. In April of 2009, nearly two years later, with their permanent residence application still pending Kurapati notified USCIS that he intended to “port” to a new employer, (under the portability provision) and he then began working for the new employer.
In July 2012, while the I-485 applications were still pending, USCIS issued a notice of intent to revoke (NOIR) to Worldwide on its I-140 visa petitions for Kurapati, based on an alleged misstatement of a material fact in the petitions, however, Worldwide did not file a response as the company was no longer in existence. Although Kurapati responded to the NOIRs in August 2012, USCIS still revoked the I-140 visa petitions on September 12, 2012, stating that Worldwide had the right to appeal the revocation, not Kurapati. Subsequent to the decision, Kurapati filed an appeal with the USCIS’ Administrative Appeals Office (AAO), but the AAO denied Kurapati and his wife’s pending I-485 application for adjustment of status because of the lack of a valid approved I-140 petition.
It is the position of the USCIS that only the petitioner (in the case Worldwide) can respond to a NOIR issued for an Form I-140, determining that the foreign national has no legal standing to submit a response to the NOIR, or even to be notified that a NOIR was issued. But the problem with Kurapati’s case, and many cases like his, is that the petitioning company has no reason to respond, because it is not beneficial to them, since they no longer exist or employ the beneficiary. Kurapati challenged the initial ruling on the procedural question of whether Kurapati and his wife had standing as the beneficiaries of the I-140 immigrant petition to challenge its revocation, not on the substantive question of whether their permanent residence applications should have been approved.
The court concluded that the couple had constitutional standing, because they were denied an opportunity to become a permanent resident that was “fairly traceable to USCIS, and that a favorable decision would provide redress by restoring that opportunity to apply for permanent residence status,” whether or not USCIS ultimately approved their individual permanent residence applications.
In other words, the court felt that an I-140 visa petition beneficiary has sufficient interest in the outcome of an I-140 petition filed on his behalf by a former employer, and that USCIS should not only issue the NOIR to the petitioner, but also to the beneficiary of the I-140 petition and give that beneficiary the opportunity to respond.
Foreign workers move to other employers under the portability provisions all the time. The importance of this case is that employees who are the beneficiaries of approved I-140 petitions may have the right to respond to USCIS notices received after the I-140 petition’s approval. We would like to remind our readers that this decision by the U.S. Court of Appeals for the 11th Circuit only applies to the states of Alabama, Florida, and Georgia and the adjustment applicants in these states do ‘now’ have a legal right to be notified of, and respond to NOIRs issued on their I-140 petitions.
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