Cyrus Mehta: The Employee Should Get Notice When an I-140 Petition is Revoked

Cyrus D. Mehta, Aug. 22, 2016- "[A] worker who was sponsored by the original employer in the EB-3 can potentially re-boot into EB-2 through a new employer, and recapture the priority date applicable to the original I-140 petition. While the EB-2 may also be backlogged for India, it is not as dire as the EB-3. If the USCIS chooses to revoke the original I-140 petition, not only will the I-495 adjustment application be in jeopardy, but also the recaptured priority date, thus setting back the foreign worker by many years in the EB-3 green card backlog. It is thus imperative that someone other than the original employer get notification of the I-140 petition who will have no interest in challenging it, and may have also possibly gone out of business. These were indeed the facts in the recent Seventh Circuit decision of Musunuru v. Lynch. ...  It is thus important to ensure that other courts do not follow the precise holding of Musunuru, and insist that the worker as the beneficiary of the I-140 petition be primarily entitled to notification. As advocated in a prior blog, the proposed rule must include that the beneficiary of an I-140 petition has the right to receive and respond to any notice regarding potential revocation of the I-140 petition. The rule must specify that it is the beneficiary who should have this right, and not the new employer as the de facto petitioner. Such a regulatory change would once and for all settle the matter in favor of the worker who ought to be able to exercise job mobility unfettered under INA 204(j)."