The process of obtaining a green card in the United States is often complex and fraught with uncertainties. One critical step in this process is the approval of the I-140 Immigrant Petition for Alien Worker. However, many foreign workers are concerned about whether their employer can revoke an approved I-140. In this article, we will provide an in-depth analysis of the circumstances under which an employer can revoke an I-140 and the implications of such a revocation.

Understanding the I-140 Petition

The I-140 petition is an essential component of the employment-based green card process. It is filed by the employer on behalf of the foreign worker and must be approved by the U.S. Citizenship and Immigration Services (USCIS) before the worker can proceed to the next steps of obtaining permanent residency. The I-140 petition serves to demonstrate that there is a legitimate job offer and that the foreign worker meets the qualifications for the position.

Employer’s Authority Over the I-140 Petition

Initially, it is crucial to understand that the employer is the petitioner in the I-140 process. This means that the employer has significant control over the petition, including the authority to withdraw it. Here are the key points to consider:

  1. Withdrawal Before Approval: If the employer decides to withdraw the I-140 petition before it is approved by the USCIS, the petition will be voided, and the process will halt.
  2. Withdrawal After Approval: An employer can also withdraw an I-140 petition after it has been approved. However, the implications of this withdrawal depend on various factors, including the timing of the withdrawal and the stage of the foreign worker’s green card process.

Impact of I-140 Revocation

When an employer revokes an approved I-140, the consequences for the foreign worker can be significant. Below, we outline the primary effects of such a revocation:

  1. Before 180 Days of Approval: If the I-140 petition is withdrawn before it has been approved for 180 days, the approval is voided. This means the foreign worker will lose their priority date and will have to start the process anew with a new employer.
  2. After 180 Days of Approval: If the I-140 petition has been approved for at least 180 days, the situation is more favorable for the foreign worker. According to the American Competitiveness in the Twenty-First Century Act (AC21), the worker retains their priority date, which can be transferred to a new employer’s I-140 petition.

Portability under AC21

The AC21 law provides certain protections for foreign workers with approved I-140 petitions. The key provisions include:

  1. Job Portability: After an I-140 petition has been approved for 180 days and the worker’s I-485 application to adjust status has been pending for at least 180 days, the worker can change jobs or employers without affecting their green card process. The new job must be in the same or a similar occupational classification as the job for which the I-140 was approved.
  2. Priority Date Retention: Even if the original I-140 petition is withdrawn after 180 days of approval, the worker can retain their priority date for future I-140 petitions filed by new employers. This retention is crucial as it determines the worker’s place in the green card queue.

Employer Misconduct and I-140 Revocation

There are certain scenarios where an employer’s actions can lead to the revocation of an approved I-140 beyond a voluntary withdrawal. These include:

  1. Fraud or Misrepresentation: If the USCIS determines that the I-140 petition was approved based on fraudulent information or misrepresentation, it can revoke the petition at any time.
  2. Inability to Pay: Employers are required to demonstrate the ability to pay the offered wage from the priority date until the employee obtains permanent residency. If the employer cannot prove this ability, the USCIS may revoke the I-140 petition.
  3. Business Closure: If the employer goes out of business or is unable to continue operations, the USCIS may revoke the I-140 petition due to the lack of a valid job offer.

Steps to Take After an I-140 Revocation

If an employer revokes an I-140 petition, the foreign worker should take immediate steps to mitigate the impact. These steps include:

  1. Consult an Immigration Attorney: Seek legal advice to understand the specific implications of the revocation and explore available options.
  2. Find a New Employer: If possible, secure a new job offer from another employer willing to sponsor a new I-140 petition. Ensure that the new job is in the same or a similar occupational classification to take advantage of AC21 portability.
  3. Retain Priority Date: Ensure that the new employer’s I-140 petition requests the retention of the original priority date, if applicable.

Conclusion

The ability of an employer to revoke an I-140 petition can significantly impact a foreign worker’s path to permanent residency. Understanding the conditions under which revocation can occur and the protections available under laws like AC21 is crucial for navigating this complex process. Foreign workers should remain proactive and seek professional guidance to ensure they maintain their eligibility for a green card despite any changes in employment circumstances.

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