Interpretations and Non-disputable reasons
Recently, there have been a number of denials issued to AC-21 Ported I-485 Applications without the Notice of Intent to Deny (NOID). While it is not yet clear if the non-issue of the NOID was in accordance to the rules or a mistake on the part of junior case officers, we are going to walk our readers through the procedures to clarify a few guidelines and their interpretations related to the AC-21 portability law.
The American Competitiveness in the Twenty-First Century Act of 2000 (AC-21) is the procedure commonly undertaken by H1-B workers while porting from one employer to another. However, since the Act is yet to be made into law, USCIS currently uses the Aytes AC-21 Memorandum of 2005 for guidance.
Before we delve into the possible reasons for denial of an AC-21 ported I-485, we would like to remind our readers that the Aytes Memo is not legally binding. Consequently, actions taken under interpretation of its guidance statements cannot be legally disputed in many cases either. However, that doesn’t mean the interpretations are fluid or can be bent to accommodate personal interpretations. Hence, we hope the reasons for the recent denials without NOID are made clear soon. In the meantime, let us go through a few possible reasons for such denials.
As per the Memo, AC-21 ported I-485 (Petition for Adjustment of Status) can be denied if the employer withdraws the approved I-140 Immigrant Petition for Alien Worker on which it is based and the alien ports within 180 days of the I-485 filing. However, if the beneficiary ports after 180 days of filing of I-485, the petition should not be denied. In case USCIS does not get a AC-21 portability report by the time the I-140 is withdrawn, the agency is obliged to issue a Notice of Intent to Deny (NOID), allowing the petitioner the opportunity to furnish the details.
However, a lot is left to interpretations of the guidelines, as we mentioned earlier. The Memo and USCIS updated guidelines indicate that in a case involving withdrawal of I-140 petitions, the employer must maintain a clear Intent of Continuing Offer of Employment and the employee must maintain a similar Intent to Work for the Employer throughout the process. These interpretations are often drawn from the content of the employer’s statement of withdrawal and other materials. The case officer may interpret whether there was a clear intent indicated or not and base his or her decision accordingly. Denial based on such an interpretation cannot be disputed.
Consequently, while the Memo does mandate the issuing of a NOID to provide the employer and employee with the opportunity to furnish evidence regarding porting, the interpretation of “intent” can also influence the interpretation of the agency’s obligation regarding the NOID.
USCIS can also issue a denial of an AC-21 ported I-485 on the basis of “Good Cause”, whereby the agency interprets that frauds, misrepresentation, or any belatedly detected facts regarding the case are good enough cause to deny the petition, even if the other procedures were followed diligently. In such cases, the guidelines do not mandate issuing of NOID and as such the decision to issue a outright denial cannot be disputed.