New USCIS Rules Address Validity of I-140 Petitions After Employer Withdraws or Ceases Business

On November 18, 2016, the Department of Homeland Security published new regulations that clarify or add rules having to do with a number of employment-based immigration visas.

The regulations, with the heading, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” become effective on January 17, 2017.

Among the many issues addressed was the question of whether an I-140 petition that an employer files on behalf of a non-citizen employee, in order to start the green card application for that person, remains effective in the event that the employer withdraws its support for the applicant or stops doing business.

The answer, according to the new regulations, is that I-140 petitions remain valid for the sponsored employee (beneficiary) to use in order to adjust status to lawful permanent resident (apply for a green card within the United States) or apply for an immigrant visa (that is, complete the green card process through an overseas consulate) if the sponsoring employer goes out of business or withdraws the petition 180 days after USCIS approved the petition or 180 days after the employee submitted an adjustment application.

If the employer goes out of business or withdraws the I-140 petition within 180 days of approval, the beneficiary would require a new petition to be submitted on his or her behalf.

Effective date: January 17, 2017