Court Rules USCIS Must Notify Employee and New Employer in Revoked Visa Case

The US Court of Appeals for the Second Circuit rendered a decision that has meaningful impact for thousands of nonimmigrant employees in the United States. The appellate court ruled that US Citizenship and Immigration Services has to provide notice of its intent to revoke an immigrant visa petition to the employee who will be affected by the potential revocation. For someone who is the beneficiary of an employment-based visa petition, this means that individuals must be provided notice. The ruling declared that USCIS must give notice to all actually affected, which can mean the employee who ported to a new job or the new employer.

The basis for the lawsuit was an employee had submitted an application for a Green Card based on an approved visa petition. Although employment-based visas are dependent on employers, employees are allowed to switch jobs. This can wrangle employers, who have made the investment in the employment-based visa for their employees. The employee changed jobs, USCIS decided to revoke the approved visa petition and it sent notice only to the first employer (who had filed for the visa.). The employee and her new employer did not learn about the revocation until it was too late. USCIS denied the Green Card application the employee filed because of the revoked visa petition. The Service also denied the employee’s attempts to reopen the visa revocation.

There is a jurisdictional issue at play. The Second Circuit Court of Appeals sits in New York and covers New York, Connecticut, and Vermont. Its decision is not binding nationwide. The American Immigration Council and American Immigration Lawyers Association are advocating for USCIS to adopt the Second Circuit’s logic and decision.