8th Circuit Weighs in on I-140 Revocations

On December 1, 2015, the 8th Circuit decided Rajasekaran v. Hazuda, 2015 BL 393183, 8th Cir., No. 14-3623, 12/1/15, and found that Courts can’t review USCIS failure to provide reasons for I-140 revocation, and an I-140 that wasn’t valid to begin with isn’t made valid by an immigrant changing jobs pursuant to the AC21 portability rules. In this case, the beneficiary was a native and citizen of India. In 2006 his then employer, Pacific West Corporation filed an I-140 on his behalf which was approved. Subsequently, the beneficiary and his family filed their I-485 and after waiting the appropriate 180 days he ported jobs, twice. Neither new employer filed an I-140 on his behalf. In 2012, Pacific West closed and the USCIS issued a Notice of Intent to Revoke (NOIR) the I-140 alleging fraud. The employer did not respond to this NOIR and the I-140 was revoked. The beneficiary’s I-485’s based on it were subsequently denied. The beneficiary attempted to argue that he was entitled to challenge the revocation of the I-140 and argued that the USCIS must disclose the specific reasons for the revocation but the Court did not agree.

This decision, coming on the heels of USCIS releasing its memo on Same or Similar job occupational classifications, which was intended to clarify and streamline a beneficiary’s ability to port jobs, may give employees pause when deciding to switch jobs. Notwithstanding this decision, beneficiaries should only be concerned when there may be grounds for a revocation based upon fraud or misrepresentation. The circumstances where these allegations would be present would be pretty rare. This decision is a reminder of the importance of having a properly filed I-140 when seeking all the future benefits based thereon.

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