Mark A Ivener, A Law Corporation

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

The U.S. Citizenship and Immigration Services (USCIS) ombudsman’s office reported that it has received reports of the agency 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.

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 If the underlying approved I-140 is withdrawn, and no evidence of a new qualifying offer of employment was submitted, then USCIS must issue a Notice of Intent to Deny the pending I-485.

However, the ombudsman understands that USCIS may deny the 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include, for example, where the beneficiary is ineligible for the benefits of the I-485 by statute, or the I-140 is withdrawn before the I-485 was pending for 180 days.

USCIS’s ombudsman asks that those who think their cases may have been denied erroneously to forward the ombudsman a case problem using Department of Homeland Security Form 7001 with the subject line, “AC21 Evidence of Immediate Denial.” The complainant should include a copy of the denial notice, detailed information on the reasons for the immediate denial and, if appropriate, evidence that a Motion to Reopen or Reconsider was submitted. If the ombudsman’s office considers the case to be an erroneous denial, it will forward the case directly to USCIS for further review.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.