The revocation of approved I-140 – Immigrant Petitions for Alien Workers by the USCIS. is occurring with relative frequency according to lawyer reports. The I-140 is the petition that is filed by a sponsoring employer after the labor certification application has been certified.
The USCIS has the authority to, and in fact does, revoke what they believe to be erroneously approved I-140 petitions. The issue could be the employer’s ability to pay or that the alien does not have the requisite minimum education or experience.
A USCIS Memo regarding the equivalency of Indian Bachelor degrees to US Bachelor degrees was issued last year. Therefore, in a situation where the USCIS approved an I-140 petition prior to the issuance of the Memo and later revisited the file to see that the alien did not in fact have the equivalent of a US bachelor’s degree that was required for the position per the certified ETA 9089, the agency may revoke the approved petition.
What is disconcerting about this USCIS revocation power is that even if an I-485 application has been filed for an entire family, the USCIS can readjudicate the underlying I-140, revoke it and then proceed to deny all I-485 applications (principal applicant and dependents) that flowed from that I-140.
The uncertainty, costs, effects on familes and employers and the emotional toll such actions cause are enormous. In cases of fraud or misrepresentation by a peitioner or applicant, revocation of a previously approved petition is understandable. However, if the USCIS approved a petition and it was their error, it seems patently unjust for the agency to then simply revoke the I-140 and let the alien suffer the consequences of its error.
As if this were not enough, stay tuned, the DOL also has the authority to revoke certified Labor Certification Applications, although it has not exercised this power as of yet.
