Employer Petition Withdrawal

Return to AC21 Issues Main Page

An employer has a right to withdraw an I-140 petition at any time, for any reason. The single exception is in cases where the beneficiary of the petition has filed an application for adjustment of status and that petition has been on file for at least 180 days. One this benchmark has been reached, an employer's loses the right to withdraw an I-140.

If an employer withdraws a petition before the beneficiary's adjustment of status application has been on file for 180 days, as far as the beneficiary is concerned, it is as though the petition had never been filed. The beneficiary does not retain the priority date nor is the beneficiary eligible for extensions of H1B stay beyond six years.

If the beneficiary has applied for adjustment of status, however, then the petitioning employer has no legal authority to withdraw an I-140, whether it is has been approved or is still pending.

The CIS has addressed these issues in their policy memos on the subject of AC21 I-140 portability. With respect to pending I-140s: 

Question 1. How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days in relation to the I-140 portability provisions under §106(c) of AC21?

Answer: If it is discovered that a beneficiary has ported off of an unapproved I-140 and I-485 that has been pending for 180 days or more, the following procedures should be applied:

A. Review the pending I-140 petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within 180 days. If the petition is approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on it’s merits. Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I-140 portability purposes.

B. If a request for additional evidence (RFE) is necessary to resolve a material issue, other than post-filing issues such as ability to pay, an RFE can be issued to try to resolve the issue. When a response is received, and if the petition is approvable, follow the procedures in part A above.

Question 2. How should service centers or district offices process unapproved I-140 petitions that were concurrently filed with I-485 applications that have been pending 180 days and a Request for Evidence (RFE) has been issued?

Answer: If a response to an RFE is received, and the response does not adequately address the issues, or the response is simply that the beneficiary no longer works for the petitioner, or a response is not received at all, and the petition still cannot be approved:

A. Deny the petition on the merits of the case; and

B. Deny the I-485 and the portability request since there was never an approved petition from which to port.

.  .  .

Question 11. When is an I-140 no longer valid for porting purposes?

Answer: An I-140 is no longer valid for porting purposes when:

A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or

B. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.

Question 12. Can the 180 days that an I-485 application must be pending for I-140 portability eligibility accrue during a period when visa numbers are unavailable?

Answer: Yes. The fact that a visa number becomes unavailable after the filing of the I-485 application does not stop the number of days required for I-140 portability eligibility from accruing.

In the CIS Adjudicator’s Field Manual – the basic policy guide for the CIS – adjudicators are instructed:

“Accordingly, if the employer withdraws the approved Form I-140 on or after the date that the Form I-485 has been pending 180 days, the approved Form I-140 shall remain valid under the provisions of §106(c) of AC21. It is expected that the alien will have submitted evidence to the office having jurisdiction over the pending Form I-485 that the new offer of employment is in the same or similar occupational classification as the offer of employment for which the petition was filed. Accordingly, if the underlying approved Form I-140 is withdrawn, and the alien has not submitted evidence of a new qualifying offer of employment, the adjudicating officer must issue a Notice of Intent to Deny the pending Form I-485. See 8 CFR 103.2(b)(16)(i). If the evidence of a new qualifying offer of employment submitted in response to the Notice of Intent to Deny is timely filed and it appears that the alien has a new offer of employment in the same or similar occupation, the USCIS may consider the approved Form I-140 to remain valid with respect to the new offer of employment and may continue regular processing of the Form I-485. If the applicant responds to the Notice of Intent to Deny, but has not established that the new offer o f employment is in the same or similar occupation, the adjudicating officer may immediately deny the Form I-485. If the alien does not respond or fails to timely respond to the Notice of Intent to Deny, the adjudicating officer may immediately deny the Form I-485.” [Emphasis added]

Illegal denials

Starting in late 2008, various rogue adjudicators at the Nebraska and Texas Service Centers began denying adjustment of status applications in clear violation of law, following notification by an employer of an attempted withdrawal of an I-140 in a case where the beneficiary's adjustment of status application (I-485) had been pending more than 180 days. There is no legal authority for such denials. As far as we know, in every single case where this happened, and the applicant filed a motion to reconsider, the denial was reversed.

The CIS Ombudsman has recognized the inability of the CIS to control some of its adjudicators, who continue to issue illegal denials: http://www.dhs.gov/xabout/structure/gc_1221837986181.shtm#1. If this happens to you, file a motion to reconsider immediately. Ask for a fee waiver because this is a clear CIS mistake. File a complaint with the CIS Ombudsman, using the link on this page. Most definitely notify both your Senators and your Congressman and ask that they seek appropriate disciplinary action against the specific adjudicator, his or her supervisors, and the Center Director.