I-140 Withdrawal After 180 Days

What happens if an employer withdraws an approved I-140?

There are two separate 180-day protections

The automatic-revocation regulation protects an approved employment-based petition when either of two alternative time thresholds has been reached before withdrawal.

Either route can prevent automatic revocation based solely on employer withdrawal.

What if the employer withdraws before either 180-day protection?

When an employer withdraws an approved employment-based petition less than 180 days after approval and before an associated I-485 has been pending for at least 180 days, the withdrawal generally causes automatic revocation under 8 C.F.R. §205.1(a)(3)(iii)(C).

That can have serious consequences for:

• The pending Form I-485.
• Eligibility to transfer the adjustment application to another basis.
• Use of the petition for consular processing.
• Job portability.
• Derivative beneficiaries.

The timing of the withdrawal should therefore be established precisely.

A protected I-140 remains approved—but the old job offer is gone

The regulation expressly distinguishes petition approval from the underlying offer of employment.

When the petitioning employer withdraws the I-140:

• The employer's permanent job offer is rescinded.
• The petition may nevertheless remain approved if a 180-day protection applies.
• The applicant cannot ordinarily continue claiming that the withdrawn employer still offers the permanent position.
• The applicant generally needs a new employment basis unless INA §204(j) allows the original petition to remain valid with respect to a new job.

How INA §204(j) solves the job-offer problem

If the qualifying Form I-485 has been pending for at least 180 days, the applicant may potentially invoke INA §204(j) job portability.

A qualifying portability case permits the protected petition to remain valid with respect to a new permanent employment offer when:

• The applicant has a qualifying employment-based petition.
• The Form I-485 has been pending for at least 180 days.
• The new employment is full-time and permanent.
• The new job is in the same or a similar occupational classification.
• The applicant and employer genuinely intend the new employment.
• USCIS receives the required portability evidence, ordinarily through Supplement J.

See Form I-485 Supplement J.

What if the I-140 was approved for 180 days but the I-485 has not been pending 180 days?

This is one of the most misunderstood situations.

If an employer withdraws an I-140 after the petition has been approved for at least 180 days, the petition can remain approved under 8 C.F.R. §205.1. But if the associated Form I-485 has not yet been pending for 180 days, the applicant ordinarily has not yet reached the statutory portability threshold under INA §204(j).

The result can be:

• The I-140 remains approved.
• The original employer's job offer is rescinded.
• INA §204(j) may not yet be available.
• The applicant may need another employment-based petition or another qualifying immigrant basis to continue adjustment.

What if the I-485 has been pending 180 days but the I-140 was approved recently?

The regulation provides an alternative protection where the associated I-485 has already been pending for at least 180 days.

Therefore, an employer's withdrawal may not automatically revoke the approved I-140 even if the petition itself has not been approved for 180 days.

If all §204(j) requirements are satisfied, the applicant may also be able to port to a new qualifying permanent job.

Withdrawal while the I-140 is still pending

The protections discussed on this page principally concern withdrawal of an approved employment-based petition. A petition that remains pending presents a different issue.

If the petitioner affirmatively withdraws a pending petition before USCIS approves it, there may be no approved I-140 to preserve under the automatic-revocation protection.

By contrast, where an I-140 remains pending and the applicant seeks portability after the associated I-485 has been pending 180 days, 8 C.F.R. §245.25 contains a special framework for adjudicating the qualifying pending petition.

A pending I-140 involved in portability must still be approvable

Where the beneficiary invokes portability based on a qualifying pending I-140 after the I-485 has been pending for at least 180 days, USCIS still determines whether the petition qualifies for approval.

Under 8 C.F.R. §245.25, the petition generally must have been eligible for approval when filed and through the point when the adjustment application reached 180 days of pendency, subject to other applicable statutory requirements.

Portability cannot rescue a petition that was substantively defective from the beginning.

Withdrawal does not protect the petition from other grounds of revocation

A petition that remains approved after employer withdrawal can still be revoked on another lawful ground.

Potential issues include:

• Fraud or willful misrepresentation.
• Material error in the original approval.
• Invalidation of a supporting labor certification.
• Failure to establish the beneficiary's qualifications.
• Failure to establish a required employer or classification element.
• Other grounds permitting revocation under immigration law.

Priority date retention is a separate benefit

Even when an applicant can no longer use an older petition as the direct basis for adjustment, the priority date from an approved EB-1, EB-2, or EB-3 petition may often be retained for a later qualifying employment petition under 8 C.F.R. §204.5(e).

Priority date retention and petition portability should not be confused.

See Priority Date Retention.

When priority date retention may be lost

The regulations contain exceptions to ordinary priority date retention. An applicant should not assume that every revoked or withdrawn petition permanently preserves the date.

Issues can arise where USCIS revokes approval because of matters such as:

• Fraud or willful misrepresentation of a material fact.
• Revocation by the Department of Labor of the labor certification supporting the petition.
• Invalidation of the labor certification.
• Material USCIS error in approving the petition.

The precise regulatory ground for revocation therefore matters.

What if the petitioning employer goes out of business?

8 C.F.R. §205.1 contains a parallel rule for termination of the petitioning employer's business.

For specified employment-based petitions, termination of the employer's business before either relevant 180-day protection can cause automatic revocation. If the protected period has been reached, the petition may remain approved unless revoked on another ground.

Business termination still eliminates the original employer's job offer, so the beneficiary generally needs:

• A qualifying INA §204(j) new job offer, if eligible; or
• A new employment-based petition or another valid immigrant basis.

The next page in this employment series addresses employer termination while Form I-485 is pending in greater detail.

The employer does not control an eligible portability case indefinitely

Before the portability provisions apply, the petitioner ordinarily controls whether to continue pursuing its employment petition and job offer.

Once the beneficiary qualifies for INA §204(j), however, the statute can preserve the qualifying petition for adjustment purposes despite a later change of jobs or employers.

This distinction is especially important where:

• The employer threatens to withdraw sponsorship.
• The beneficiary has already changed employers.
• The employer refuses to sign a new Supplement J.
• The employer is acquired or reorganized.
• The applicant is laid off after the I-485 has been pending more than 180 days.

Supplement J after employer withdrawal

If the original employer has withdrawn the permanent job offer and the applicant is eligible for §204(j), the applicant ordinarily documents the new employment through Form I-485 Supplement J.

The new offer must satisfy the portability requirements, including the same-or-similar occupational classification standard.

See Same or Similar Occupational Classification.

Transfer of underlying basis after withdrawal

An applicant may also have another qualifying immigrant petition available and ask USCIS to transfer the pending I-485 to that new basis.

Timing can be critical because USCIS generally requires continuing adjustment eligibility. If the original supporting petition is revoked before the applicant properly establishes another basis, the applicant may lose the ability to transfer that same pending I-485.

See Transfer of Underlying Basis / Interfiling.

Withdrawal does not automatically cancel a pending I-485

An employer's withdrawal of an I-140 does not itself function as a request by the adjustment applicant to withdraw Form I-485.

However, USCIS must determine whether the I-485 continues to have a valid underlying immigrant basis. If the petition is revoked or the permanent job offer disappears and no portability or substitute basis exists, USCIS may ultimately deny the adjustment application.

Derivative applicants depend on the principal's continuing eligibility

Spouses and children adjusting as derivatives of the employment-based principal generally depend on the principal applicant maintaining a valid immigrant and adjustment basis.

If the principal preserves the case through §204(j), qualifying derivatives can ordinarily continue with their associated adjustment applications. If the principal loses the employment basis and cannot preserve or replace it, derivative eligibility can also fail.

A timeline is essential

Employer-withdrawal cases should be analyzed using exact dates rather than general recollection.

Example: protected withdrawal and valid portability

Example: I-140 protected but portability unavailable

Example: early withdrawal

Evidence to preserve an adjustment case after withdrawal

• I-140 receipt and approval notices.
• Form I-485 receipt notice.
• Evidence establishing exact filing and approval dates.
• Employer withdrawal notice if available.
• USCIS correspondence concerning withdrawal or revocation.
• Original permanent job documentation.
• New permanent job offer.
• Form I-485 Supplement J.
• Same-or-similar occupational comparison.
• Evidence of continuing visa availability when relevant.
• Any replacement I-140 or other immigrant petition.

Common I-140 withdrawal mistakes

Primary authorities

Related INA245.com guides

Frequently asked questions