Court Finds Beneficiary of I-140 Petition Can Challenge Denial

It may now be possible for a prospective employee to challenge a denial of an I-140 petition under a theory approved by a recent Federal Court of Appeals decision.

Before the decision, it was accepted that only a sponsoring company could appeal a denial of a petition for an employment visa. The Court reasoned that there must be a right to challenge a negative decision where Congress intended that the foreign national have a stake in the visa process, since it is the foreign national and not the employer who is entitled to the immigrant visa.

The decision was rendered by the U.S. Court of Appeals for the Sixth Circuit, which includes Kentucky, Ohio, Tennessee, and Michigan. Therefore, at present, only those individuals and employers in the jurisdiction of the Sixth Circuit are bound by this decision. However, it is possible that this theory may be accepted by other courts and is a potentially promising development.

For a copy of the court's decision, click here.

Categories: Immigration Blog