4/12/2005

Under the immigration statute (INA), USCIS cannot revoke the approved I-140 petition unless the following conditions are met:

(1)  It has a good and sufficient evidence; 

(2) Notice of revocation is mailed to the petitioner (employer) and communicated to the alien beneficiary by the U.S. Secretary of State 

(3) Before the alien commences the journey to the United States.

Accordingly, the USCIS can revoke the approved I-140 petitions if the alien still resides outside of the U.S. by giving notice before the alien departs for the U.S.

Question remains "what happens if the alien is already in the United States?" At this time, there are two separate laws depending on the jurisdiction of the petitioner.

In all jurisdictions (states) other than New York, Connecticut, and Vermont, the governing rule is the decision of the Board of Immigration Appeals, 12 I&N Dec 61 (BIA 1967), which states that the agency can revoke the approved I-140 petition if the agency have given a notice of revocation even if the alien is already in the U.S. on the theory that otherwise the approved I-140 for the aliens who were already in the U.S. would be irrevocable for good.