What happens when an I-140 is withdrawn?
When an I-140 is withdrawn, the petitioning company generally avoids any liability they have would toward that I-140 petition, particularly as it relates to ability to pay the Labor Certification wage. Thus, once a company withdraws an I-140 petition–regardless of how long it has been approved–a company no longer has to support that I-140, for any reason.
While the sponsoring company will lose any liability they have toward the I-140, the beneficiary of the I-140 can use the approval, although withdrawn, for a number of entitlements. However, for an individual beneficiary, the impact of having your I-140 withdrawn depends upon 1) when the case was withdrawn and 2) how long the I-140 has been approved before the withdrawal of that I-140.
In January 2017, USCIS issued a new rule clarifying the impact of withdrawn I-140 petitions. Generally, if an I-140 approval was withdrawn prior to January 17, 2017, that I-140 approval is considered automatically revoked; the Beneficiary of that now-withdrawn I-140 approval should not attempt to use the priority date of that I-140 or attempt to use the I-140 approval for H-1B Extensions under AC21 or applying for H-4 EADS.
Conversely, if an I-140 approval is withdrawn after January 17, 2017 but had been approved for at least 180 days as of the date of withdrawal, USCIS will consider the case as remaining approved and will “vest” the beneficiary with that I-140 approval
For beneficiaries of approved I-140 petitions, the critical juncture regarding the withdrawal of the I-140 is 180 days after its approval. Once the I-140 has been approved for 180 days, the I-140 beneficiary gains certain indefinite entitlements pursuant to that approval—among those being indefinite H-1B extensions, H-4EAD approvals, as well as priority date retention. Therefore, even if the petitioning company withdraws the approved I-140, the I-140 beneficiary can use that approval for H-1B extensions with any company as well as spousal H-4EADs indefinitely so long as the I-140 withdrawn occurs after the I-140 has been approved for at least 180 days.
Additionally, with regard to retaining priority dates, an I-140 must remain approved for 180 days before a beneficiary becomes entitled to the priority date of their petition for priority date portability purposes. That is, if you have an approved I-140, you will be granted the priority date of that petition only if it has been approved for 180 days and a withdrawal of that I-140 occurs after January 17, 2017.
If you have an approved I-140, be conscient of the 180 day mark—at that point your green card journey becomes much easier. For sponsoring employers, withdrawing an I-140 is solely a benefit to the company without any negative recourse to the company. However, for a sponsoring company, allowing an I-140 to mature for 180 days before withdrawing could be a magnanimous gesture to those employees who may have helped grow the business. For I-140 beneficiaries, the 180 day mark can ensure your continued ability to remain and work in the United States indefinitely, or at least until the long-sought after availability of a Green Card.
By: Ryan Wilck
Ryan is an attorney at Reddy & Neumann PC. Ryan began with the firm in 2012 as a law clerk and has continued with the firm as an attorney from 2014. His main practice covers immigrant visa petitions with skills and experience in various non-immigrant petitions as well as criminal issues.