Any worker can face significant difficulties during a layoff. However, a layoff may entail additional difficulties for foreign nationals. These frequently Asked Questions (FAQs) are intended to provide general information regarding some of the more typical issues that foreign nationals with pending green card cases face following layoffs.
Layoffs Affect Green Card Cases
Question 1. I have an approved I-140 but was recently laid off by that employer. What happens if the employer revokes my I-140? Does it matter how long ago the I-140 was approved?
The petitioning employer has the option of withdrawing the I-140, which will result in the I-140 being revoked by U.S. Citizenship and Immigration Services (USCIS). If it was approved less than 180 days ago. The beneficiary typically retains the priority date in that scenario. Moreover, that I-140 cannot be used for other purposes, such as for extending H1B status beyond the standard six-year max.
The employer may withdraw the job offer if at least 180 days have passed since the I-140 was approved, but this will not affect the I-140. This means that the beneficiary can still use the I-140 to extend their H1B status and keep their priority date, and the H-4 dependent spouse can use the I-140 to apply for an employment authorization document (EAD).
Question 2. If my I-140 was approved 180 days ago, is there any circumstance where the I-140 could still be revoked?
The USCIS has the authority to revoke an I-140 for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error, regardless of how long ago the I-140 was approved. In most cases, the USCIS must first send the petitioning employer a notice of intent to revoke (NOIR) and give the petitioner a chance to respond before revoking the I-140.
The beneficiary cannot use that I-140 to apply for any other immigration benefits (such as extending H1B status beyond six years) if it is revoked, including the priority date.
Question 3. Given that I was laid off, if a NOIR is issued to my previous employer, I doubt they would bother to respond to it. What happens then?
The I-140 will almost certainly be revoked by USCIS if the petitioner does not respond to the NOIR.
Question 4. Will USCIS send a copy of the NOIR to me?
According to USCIS policy and law, the NOIR can only be issued to the company that filed the I-140.
Question 5. Is there any way that I can ask the USCIS to send me the NOIR and let me respond?
In most cases, the beneficiary will not receive a copy of the I-140 NOIR from the USCIS unless the beneficiary has an I-485 that has been pending for at least 180 days, ports to a new employer by AC21, and submits an I-485 supplement J informing the USCIS of the move to the new employer before the NOIR’s issuance.
Question 6. My employer filed form I-485 for me concurrently with my I-140 petition. Those cases have been pending for more than 180 days, but I have now been laid off. Is it possible the USCIS may still approve the I-140 and I-485?
According to USCIS guidance issued in 2005, the I-140 should be reviewed and approved if it was approvable when filed if the worker’s I-485 is pending for at least 180 days. However, since 2005, the USCIS has not provided any formal guidance regarding this matter.