I-140 Revoked after AC21 Portability

From our community member

Here is my Situation.

I used to work for Employer "A" who filed for my EB3 Labor and I-140. I-140 was approved in Feb 2007. In July 2007, when the dates became current, I filed for my I-485. In December ending of 2007, which was around 180 days after filing the I-485, Company "A" was acquired by Company "B", at that time I got an email from my employer HR indicating that Company "B" will now take over all immigration responsibilities of "A" and no H1 transfers or re-filing of I-140 is required. I was also assured that since my I-485 was pending for 180 days and i had EAD and 6 pay slips / one per each month from company "A" , there should not be any issues, since AC21 can be applied too, in this case. So I continued to work for Company "B" for about 1 year from Jan 2008 to Jan 2009. I received pay checks from "B" during this period.

In Feb 2009 I joined a direct client, Company "C" on H1B. Got the H1B approval beyond 6 years, using company "A" I-140 approval copy. Company "C" Attorney sent AC-21 documents to USCIS. Company "C" does not file labor or I-140 they do only H1B or hire on EADs but does not do green cards. Now, after more than 7 years of I-140 Approval from Company "A", I came to know that USCIS, has revoked the I-140 of a different employee who was in the similar situation as me, but he didn't had H1B and he was forced to leave USA since his I-485, EAD and Advance Parole were all based on this I-140. It seems USCIS said the underlying Labor and I-140 were fraud. Hence everything is denied. He did leave the country.

My Question : What are my Options if something like this occurs for my case too? I understand its hard to tell if this will occur or not. Company "A" which filed my I-140 no longer exists and I have no contact what so ever with Company "B". If I-140 gets revoked for fraud by the company "A", will the employee be held responsible? Can this kind of adverse decision be appealed and during appeal process what happens to the status. Are we allowed to stay and work in the country when this case is in progress? I was reading online about the "The case, Kurapati vs USCIS”, this lawsuit is similar in nature. Is there a ray of hope with this?

You’re Suggestions/Comments please.

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See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  



See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  


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First of all a company does not file labor or I-140. They are not going to do green cards.  

Now Kurapati actually does not stand for this.  Let me explain to you what happens. First of all I-140 can be revoked by the USCIS for fraud at any time. In addition they can also revoke an I-140 where it was not approvable when filed.  So if it was incorrectly approved it can also be revoked. If it does get revoked unfortunately USCIS reading of the law is it gives you no portability right and it gives you no right to priority date. I think that’s a question because if they revoke an I-140 after they have approved it I can still argue for the priority date if the revocation was not for a fraud. Although I think I would probably loose that argument. So in any case right now the rule is that if they revoke a case either for fraud or for not having been approvable when filed you get nothing out of it. You cannot get the priority date, you cannot get anything. The problem is what do you do?  Can you file an appeal and while the appeal is pending keep getting H-1B extensions and the answer is doubtful unless the old employer wants to file the appeal.

About five years ago we had a series of cases like this where a company went under - couple of hundred employees was put under the street. We were able to file appeals on behalf of the employees using the Kurapati logic. What is the Kurapati logic?  That’s the case in which the 11th circuit this year decided that even employees have the right to fight an I-140 revocation.  So in our view we always took the position that especially where AC21 rights are involved employees have a clear actionable plan to the I-140. So it’s not only the employer but even the employee who should be allowed to file the appeal.

What can you do?

In my view the best thing to do is leave this employer and find another employer who is willing to start your green card process because if this green card can go away really you need to have a backup plan. That is the only thing I can recommend.  

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  


Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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