Employment Law Daily USCIS should have given worker’s new employer chance to challenge revocation of visa petition by former employer
Monday, August 8, 2016

USCIS should have given worker’s new employer chance to challenge revocation of visa petition by former employer

By Lorene D. Park, J.D. Reviving a challenge to the revocation of a visa petition that was filed by a nonimmigrant worker’s former employer, the Seventh Circuit held that the portability provision under an amendment to the Immigration and Nationality Act (INA) gave the employee’s successor employer the right to notice of the U.S. Custom and Immigration Service’s (USCIS) intent to revoke his visa petition and an opportunity to respond or challenge the revocation. The intent of the portability provision, explained the appeals court, is for a nonimmigrant worker’s new employer to adopt the original petition filed by the former employer and the new employer must therefore be treated as the de facto petitioner with respect to the original visa petition (Musunuru v. Lynch, August 3, 2016, Manion, D.). First visa petition. The employee, a native of India who wanted to be a lawful permanent U.S. resident through the INA’s employment-based immigrant visa process, was the beneficiary of two visa petitions by employers. His first employer, Vision Systems, filed a labor certification, which was granted, and then filed an I-140 petition to classify the employee as a professional or skilled worker under 8 U.S.C. §1153(b)(3)(A). The USCIS approved the I-140 petition, assigning a priority date of February 17, 2004. Because only a limited number of visas are available per country each quarter, the date was important because it reserved his place in a long line of those waiting for visas to become available. A visa had to be "immediately" available to take the final step of filing his I-485 application to have his status adjusted to permanent resident. Second petition, much later priority date. Meanwhile, the employee changed jobs and his new employer, Crescent Solutions, did not apply for its own labor certificate, but relied on Vision Systems visa under the portability provision of the INA. A year later, it applied for a new labor certificate and I-140 petition so it could promote the employee to a new job. The USCIS approved the petition in March 2011. Crescent Solutions’ petition retained the priority date from the first employer’s petition, February 17, 2004. Now that the employee was classified as an EB-2 (a member of a profession holding an advanced degree or an alien of exceptional ability), a visa was immediately available so the USCIS could adjudicate his application. Instead, the USCIS amended its approval of Crescent Solutions’ I-140 petition and changed the priority date to January 28, 2011, the date the labor certificate was filed. First visa petition revoked. The reason the USCIS amended the priority date was because it had revoked Vision Systems’ visa petition, thereby invalidating the earlier priority date and leaving the employee with his second employer’s much-later date. The first employer was guilty of unlawfully hiring an alien (unrelated to the employee) and the USCIS presumed that all of its visa petitions were fraudulent. The USCIS sent notice to Vision Systems of the intent to revoke the employee’s petition but it was out of business and did not respond. Neither the employee nor his current employer received notice. Employee challenges revocation. When the employee learned of the problem, he provided evidence showing his employment with Vision Systems was genuine so as to overcome the grounds for revoking the original I-140 petition. Nevertheless, the USCIS kept the later priority date, and because there were no visas available for petitions at that date, the employee was denied. He asked the USCIS to reconsider and it reinstated his application to pending status at the much later date. As for his argument that revoking Vision Systems’ petition was error, the USCIS found he lacked standing because he was the beneficiary, not the petitioner. The employee filed a petition for judicial review under the APA, claiming that the portability provision kept Vision Systems’ visa petition valid while he "ported" to Crescent Solutions, and that it gave him a procedural right to pre-revocation notice and an opportunity to respond. The district court disagreed and granted the USCIS’s motion to dismiss. AC21’s portability provision. Reversing, the Seventh Circuit noted that it was not reviewing the merits of the employee’s underlying claim that the first I-140 petition was not fraudulent. Instead, at issue was the USCIS’s decision to deny him the chance to challenge the revocation. The appeals court pointed to a 2000 amendment to the INA, the American Competitiveness in the Twenty-First Century Act (AC21). The goal of AC21 was to help employers acquire skilled technology employees by, among other things, making I-140 petitions and labor certifications portable. Under AC21, a worker could change jobs before his I-485 application is approved and the new employer could simply use the prior employer’s labor certification and I-140 petition. New employer had a right to challenge revocation as "de facto" petitioner. In the appellate court’s view, the statutory provisions and regulations were clear. The USCIS must give a petitioner notice of its intent to revoke an I-140 petition. However, notice did not have to be given to the beneficiary, as argued by the employee. Here, as successor employer, Crescent Solutions had a vested interest in the validity of the I-140 petition. Indeed, for over a year it did not file its own petition but relied on Vision Solutions’ petition. And even though it eventually filed its own petition, it relied on the original priority date, which would have allowed the uncertainty over the employee’s permanent status to be removed much sooner. Consequently, the USCIS should have treated Crescent Solutions as the de facto petitioner, given it notice of the intent to revoke approval of the original I-140 petition, and given it a chance to offer evidence in opposition to revocation.

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