AC21 Issues: Did USCIS Immediately Deny Your Adjustment of Status Application Following a Change of Employment?

The Ombudsman has received inquiries noting that USCIS is not issuing Notices of  Intent to Deny following a change of jobs, as required by the American Competitiveness in the 21st Century Act (AC21) and USCIS policy guidance, but instead is immediately denying pending Form I-485 (Application to Register Permanent Residence or Adjust Status) applications.  Does this apply to you?

If a foreign national is:  (1) the beneficiary of an approved Form I-140 (Petition for Immigrant Worker); and (2) has a Form I-485 pending for 180 days or more, s/he is eligible to change to a same or similar position.  If the underlying, approved Form I-140 is withdrawn, and no evidence of a new qualifying offer of employment was submitted, then, USCIS must issue a Notice of Intent to Deny the pending Form I-485.

However, the Ombudsman understands that USCIS may deny the Form I-485 in cases of portability (the ability to change jobs) before first issuing a Notice of Intent to Deny in certain limited circumstances.  These include, for example, where the beneficiary is ineligible for the benefits of the Form I-485 by statute, or the Form I-140 is withdrawn before the Form I-485 was pending for 180 days.

Do you think your case was erroneously denied?  Then please forward the CIS Ombudsman a case problem using DHS Form 7001 with the subject line “AC21 Evidence of Immediate Denial.”  Include a copy of your denial notice, detailed information as to the reasons for the immediate denial, and, if appropriate, evidence that you submitted a Motion to Reopen or Reconsider.  If we consider your case to be an erroneous denial, we will forward it directly to USCIS for further review.

Below are some links to further clarify USCIS processing of these cases:

• USCIS Interoffice Memorandum – May 30, 2008 (PDF, 18 pages - 138 KB)
• USCIS Interoffice Memorandum – December 27, 2005 (PDF, 8 pages - 94 KB)
• USCIS Interoffice Memorandum – May 12, 2005 (PDF, 12 pages - 292 KB)
• USCIS Interoffice Memorandum – August 4, 2003 (PDF, 5 pages - 159 KB)
• American Competitiveness in the Twenty-first Century Act of 2000, Public Law 106-313
• May 2008 CIS Ombudsman Teleconference: “USCIS Summer 2007 Application Surge: How Is It Affecting You Now?”  Question #5

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