In the Dark
The beneficiary of an I-140 has much to lose if their case is denied, including a coveted priority date. Yet the law has never recognized the beneficiary as a party allowed to participate in their own case. Until now, USCIS communicated with petitioners and petitioner’s representatives. Practically speaking, beneficiaries remained in the dark about the progress of their employment-based application. They were likely unaware of any legal obstacles that he/she may be facing unless their employer chose to share this information.
Change for the Better
Finally, we have some transparency! On November 11, 2017, USCIS adopted a decision and issued a policy memo stating that beneficiaries who have properly ported under AC21 are affected parties. They are now entitled to receive notices pertaining to the potential revocation of the approval of an immigrant visa petition due to their ability to port that petition to new employment. Now, when USCIS sends a notice of intent to revoke (NOIR) or a notice of revocation (NOR) for a previously approved I-140 they will also inform the beneficiary in certain circumstances.
When are Notices Expected?
Effective November 11, 2017, Beneficiaries will receive notice in cases where the agency issues a NOIR (notice of intent to revoke) or NOR (notice of revocation) to the petitioner. This will only apply in cases where the foreign beneficiary of an approved I-140 has:
- filed a Form I- 485 with USCIS that has been pending for 180 days or more; and is
- otherwise eligible to port and has properly requested to port. Specifically, by filing Supplement J.
Further guidance states that, in cases where USCIS determines that the beneficiary is an affected party, USCIS will send a decision to both the petitioner and beneficiary. The petitioner and the beneficiary may file separate motions and/or appeals. Notably, the content of the notices that are sent to the beneficiary may be very similar or identical to the notice that is sent to the petitioner. However, the content may differ when needed to protect private and/or proprietary information about either party.
USCIS intends to consider rebuttal evidence from both the petitioner and beneficiary before making a final determination on revocation. If the evidence received is contradictory, the adjudicator will evaluate its credibility.