Court of Appeals AC21 Decision helpful to those using AOS Portability

The 11th Circuit Court of Appeals recently decided a case, Kurapati v. USCIS in which the Court issued an important decision that helps tchangejobshose who filed an adjustment based upon an approved I-140 that was sponsored by an employer they no longer work for.
In most such cases, there is no real issue.  According to AC21, if you have an approved I-140 and your I-485 has been pending for six months or longer, you are able to switch employers as long as the new position is “the same or similar” to the originally sponsored position.  The exception to this is if USCIS revokes the I-140 for “cause” (i.e. fraud, or other reasons that led USCIS to believe that the I-140 should not have been approved to begin with).  In such cases, USCIS would then deny the underlying I-485 as well.  In most such cases, the first time that the employee knows that USCIS wanted to revoke the I-140 is after USCIS has already revoked the I-140 and denied their adjustment.  This is because the Notice of Intent to Revoke is ONLY sent to the employer, not the employee.  Unfortunately, in such cases the employer has little incentive to respond (if they are still in business) as the employer no longer works for them.
In one such case the employee, a Mr Kurapati challenged the revocation by filing an appeal with the Administrative Appeals Office and the US District Court.  Both bodies stated that Mr. Kurapati did not have legal standing to file an appeal, and that only the employer could file an appeal of the revocation, despite the fact that the employer in this case no longer even existed.  Mr. Kurapati then filed an appeal of the denials with the 11th Circuit Court of Appeals.  The 11th Circuit, in looking at the case made two observations.  First, they stated that the purpose of AC21 was to protect the rights of immigrants to change jobs without having to restart the entire green card process.  Second, they noted that both Mr. Kurapati and his spouse were injured by the revocation of the I-140, as they lost the opportunity to adjust their status.  Therefore, the court reasoned they DO have legal standing to appeal the denial of the I-140.
Employers should note that if an employee does challenge the revocation of an approved I-140 they may get access to all documents filed by the company in support of the I-140 and in response to the NOIR.
 Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

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