Can the Beneficiary of an I-140 Petition Challenge its Revocation?

According to a decision by the 11th District Court of Appeals (DCA), the answer is Yes. This is an important decision because USCIS’ revocation of an I-140 may lead to the denial of the beneficiary’s application for adjustment of status (AOS) and typically the beneficiary does not receive notice of the I-140 revocation.

In this case, the beneficiary had an approved I-140 filed by his employer. In August 2007, he applied for AOS.  In April 2009, he ported to a new employer. In July 2012, while his application for AOS was still pending, USCIS issued a notice of intent to revoke (NOIR) the approved I-140.   In September 2012, USCIS revoked the I-140 based on its perceived I-140 defects. Because the employer was no longer in business, the beneficiary responded to the NOIR and appealed the revocation with the AAO and the U.S. District Court for the Middle District of Florida. These courts dismissed the case on the basis of lack of standing.  However, the 11th DCA held that a beneficiary of an I-140 visa petition falls within the “zone of interested plaintiffs” and has authority to challenge the revocation. Additionally, the Court held that regulations should be construed to require USCIS to serve beneficiaries of an I-140 with the NOIR and must be given the opportunity to be heard prior to USCIS making the decision to revoke.

To read the decision, please visit here.