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2nd Circuit Court Requires I-140 Revocation Notice: Analysis

On December 30, 2015, the US Court of Appeals for the 2nd Circuit ruled that US Citizenship and Immigration Services (USCIS) must notify either the beneficiary of an approved I-140 or successor employer, of any intent to revoke the petition prior to revocation (Mantena v. Johnson, Docket No. 14-2476-cv, (2nd Cir., Dec. 30, 2015)). 

Case Summary

This case came up in the common situation of a foreign national being sponsored for permanent residence by an employer, but then changes employment to a new employer under rules allowing portability of employment after I-140 immigrant petition approval and after the I-485 adjustment of status application had been pending at least 180 days.  Prior to this case, USCIS only notified the petitioning employer of the I-140 of the intent to revoke or of revocation itself.  Revocation is often initiated by the I-140 petitioning employer when the employee leaves their employment.

USCIS Now Required to Notify of Intent to Revoke

However, the court’s ruling in Mantena now requires USCIS to notify I-140 beneficiaries or the new employer of any intent to revoke the I-140.  The Court relied on the statutory I-140 porting provisions of the American Competitiveness in the 21st Century Act (AC21) for its holding, reasoning that it is these new porting provisions that mandate notice to either the I-140 beneficiary or new employer.  The Court concluded that Congress’ intent to allow job flexibility under AC-21 is a benefit to both the employee and new employer to allow for greater job flexibility and attract eligible workers without additional “bureaucratic delay.”  The Court correctly concluded that after porting employment to the new employer, the only interested parties in the I-140 are the beneficiary and the new employer—not the I-140 petitioning employer who would have been the only party given notice of a revocation.

Further Issues Still to Be Decided

The court did leave open a number of questions remanding the case back to the District Court for further proceedings.  The 2nd Circuit was impressed by the fact that the beneficiary and new employer had provided notice of the porting of employment, but did not indicate whether this should be a requirement.  So, more will need to be decided in further District Court proceedings.  USCIS will presumably implement any changes to the I-140 revocation notice procedure nationally rather than only in the jurisdiction of the 2nd Circuit.

Stay tuned for more clarification after District Court proceedings and USCIS implementation.

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William L. Coffman

Special Counsel

William L. Coffman focuses on immigration and nationality law at Mintz. He represents clients on immigration matters before the US Citizenship and Immigration Services, the Department of Labor, and US and foreign consulates.