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Immigration Law

The Opportunity to Be Heard: The Proposed I-140 Regs and Mantena v. Johnson - David Isaacson

David Isaacson, Feb. 17, 2016 - " It appears from the proposed rule that in making its determination whether “petition approval was in error”, to quote again from proposed 8 CFR 204.5(e)(2)(iv), and so should no longer confer a priority date, USCIS would look to the I-140 petitioner for further information, even though that petitioner might lack any interest in providing it. Similarly, the rules regarding revocation of an I-140 petition on notice have not been changed by the proposed rule, and presumably would again involve notice to the petitioner. A hostile petitioner who would have wished to withdraw a petition, or a petitioner which had innocently gone out of business, could give rise to a revocation by failing to respond to notice from USCIS, and in so doing undermine the exercise of §204(j) portability. This is not merely a theoretical concern. A recent precedential opinion of the U.S. Court of Appeals for the Second Circuit, Mantena v. Johnson, 809 F.3d 721 (2d Cir. 2015), published on December 30, 2015, demonstrates how this problem can arise under the current regulations."

David A. Isaacson