Despite the greater job flexibility offered under Section 106(c) of the American Competitiveness in the Twenty-First Century Act (AC21 106c), there are a number of situations where the I-140 petition will no longer be considered valid for AC21 portability purposes, including:

• The I-140 petition is withdrawn before the I-485 application has been pending for 180 days or more;
• The approved I 140 petition is subsequently revoked by the United States Citizenship and Immigration Services (USCIS); or
• The I-140 petition is denied.

Though the issues described in detail below may seem relatively straight-forward in theory, AC21 law is extremely complex in its application. It is important to always consult with an experienced immigration attorney regarding the particular circumstances of your case to avoid potentially adverse effects in the immigration process.

I-140 Withdrawn Prior To 180 Days

In the event an I-140 petition (approved or unapproved) is withdrawn by the employer or revoked by the USCIS prior to the I-485 application pending for 180 days, the I-140 petition will no longer be valid for AC21 portability purposes. Further, it is also within the discretion of the USCIS adjudicator to deny the I-485 application immediately upon the withdrawal or revocation of the I-140 petition if the I-485 application has been pending less than 180 days.

Approved I-140 Withdrawn

Under certain circumstances, an employer may withdraw an approved I-140 petition if the foreign national beneficiary accepts employment with another employer in the same or a similar occupation. If an approved I-140 petition is withdrawn, it will nonetheless remain valid for AC21 portability purposes so long as the associated I-485 application has been pending for 180 days or more.

When an I-140 sponsoring employer requests that an approved I-140 petition be withdrawn, the USCIS will check whether evidence that the new position is in the same or a similar occupational classification has been submitted. If evidence of a new qualifying offer of employment has not been received by the USCIS, a Notice of Intent to Deny (NOID) the pending I-485 application will be issued. A timely response to the NOID, containing the evidence necessary to prove there is a new offer of employment in the same or a similar occupational classification, will be required in order for the underlying I-140 petition to remain valid. The USCIS adjudicator has, within his or her discretion, the ability to immediately deny a pending I-485 application if there is no response to the NOID or the response fails to adequately show a valid offer of employment in the same or a similar occupational classification.

Reasons For I-140 Revocation

Fraud Or Erroneous Approval

The USCIS can revoke a previously approved I-140 petition, and immediately deny the corresponding I-485 application, if they determine fraud was involved or if the petition should not have been approved originally. The foreign national beneficiary does not have to be working for the I-140 sponsoring company prior to the approval of the I-485 application. However, an I 140 petition will be considered fraudulent if the sponsoring employer and foreign national beneficiary did not truly intend to engage in a bona fide employment relationship upon the approval of the I-485 application. The sponsoring employer and foreign national beneficiary must have genuinely intended to undertake the employment relationship at both the I-140 petition and I-485 application filing stages (if not filed concurrently).

Revocation Or Invalidation Of The Labor Certification

Revocation of an approved I-140 petition may also be premised upon the invalidation of the underlying labor certification. The Department of Labor may revoke an approved labor certification upon finding that the initial certification was not justified. Likewise, the Department of State and/or the Department of Homeland Security may invalidate a previously approved labor certification if it is determined that there was fraud or a willful misrepresentation of a material fact in the labor certification application. If the labor certification supporting the I 140 petition is subsequently revoked or invalidated, the I-140 petition is no longer valid.

I-140 Denial

If a pending I-140 petition is denied, it is no longer valid for AC21 portability purposes. The timing of the denial is not taken into consideration by the USCIS. Accordingly, even if the I-140 petition was denied after the I-485 application was pending for 180 days and/or after a request for portability was received by the USCIS, an I-140 denial will invalidate the I-140 petition for portability purposes.