What is an I-140 Petition?
An I-140 petition, or Immigrant Petition for Alien Worker, is filed to petition an alien worker to become a permanent resident in the United States. Within 180 days from the date your Labor Certification is approved by the U. S. Department of Labor, the employer must file an I-140 Petition on your behalf. An I-140 Petition may be filed without a Labor Certification where the Beneficiary qualifies under EB-1 classification.
Who is an I-140 Petition Filed for and What are the Classifications?
On the I-140 Petition you will be asked to indicate the Petition type. Please note, an I-140 may be filed on behalf of Beneficiaries classified as follows:
- An alien of extraordinary ability (EB-1(A) Category)
- An outstanding professor or researcher (EB-1(B) Category)
- A multinational executive or manager (EB-1(C) Category)
- A member of the professions holding an advanced degree or an alien of exceptional ability (EB-2)
- A Skilled worker (EB-3(A)(i))
- A Professional (EB-3(A)(ii))
- Other workers (EB-3(A)(iii))
Please see our links on EB-1, EB-2, and EB-3 for more details.
What Materials Should Accompany Your I-140 Petition?
- Completed Form I-140;
- A copy of your approved Labor Certification;
- Filing fee of $475 by check or money order made payable to the Department of Homeland Security;
- Proof of the Petitioner’s financial position to pay the beneficiary’s wages;
- Experience letters from the Beneficiary’s previous employers;.
- Other documents such as degree certificates, education evaluations, and qualification letters may be required.
- In the I-140 petition, the employer must identify whether the beneficiary will apply for consular processing at an American Consulate abroad for an immigrant visa or apply for adjustment of status to become a permanent resident within the United States.
Note on Ability to Pay Wages Issues:
As part of the I-140 Petition, your employer must demonstrate it has the ability to pay the proffered wages specified in the Labor Certification from the time the Priority Date was established and continues to have this financial ability. As per the May 4, 2004 Memorandum from William R. Yates on the issue of “Determination of Ability to Pay under 8 CFR Sec. 204.5(g)(2)”, USCIS adjudicators should make a positive ability to pay determination in any one of the following circumstances where the record contains credible evidence that either the net income, net current assets, or wages paid are equal to or greater than the proffered wages. For this purpose, the employer's audited financial statements, corporate income tax return documents, and W-2 wages paid to the beneficiary should be submitted. **Please note in recent months, USCIS has inquired with many Petitioners regarding ability to pay not only an individual Beneficiary, but the sum total of the proffered wages of all Beneficiaries Petitioner has filed immigrant petitions for.
Can you file I-140 and I-485 Concurrently?
If your priority date is current when filing your I-140, you are eligible to file your I-485 (Adjustment of Status) Petition concurrently. This includes I-485 Petitions for spouses and applicable children. To check if your priority date is current, please check the most recent visa bulletin.
If you are filing your I-140 and I-485 concurrently, applications for Employment Authorization (EAD) and Advance Parole may also be filed at this time.
Please see our section on I-485 Petitions for further information.
What Happens After I Submit My I-140 Petition?
After USCIS obtains your I-140 Petition, a Receipt Notice is issued and a Receipt Number is assigned to your case. The processing time taken by USCIS to approve or reject the I -140 depends on whether a Request for Evidence is issued, duplicate Requests for Evidence are issued, or a Notice of Intent to Deny is issued. Furthermore, processing times can vary greatly given that particular Service Centers may have longer backlogs. For general processing times please see the link. If your case is approved, then an Approval Notice will be issued. Please note, approval of an I-140 does not confer any status or authorized period of stay permission. Your status will remain the same as prior to approval of your I-140 petition.
Am I Eligible for I-140 Premium Processing?
USCIS is currently allowing I-140 premium processing in limited circumstances. I-140 premium processing is only available to an alien beneficiary who as of the date of filing the Form I-907: is the beneficiary of a form I-140 petition filed in a preference category that has been designated for premium processing service; has reached the 6th year statutory limitation of his or her H-1B stay, or will reach the end of his or her 6th year of H-1B stay within 60 days of filing; is only eligible for a further H-1B extension upon approval of his or her Form I-140 petition as prescribed by American Competitiveness in the Twenty-first Century Act (AC21) provisions 104(c)1; and is ineligible to extend his or her H-1B status under AC21 §106(a)2.
What if My I-140 is Rejected?
Within thirty days of denial (thirty three days if the denial is received by postal mail) you may file an Appeal or a Motion to Reopen your I-140 Petition. An immediate consultation with your immigration attorney is a must at this point to gauge the reasons for the unfavorable adjudication and to assist you in deciding whether or not to proceed with a Motion to Reopen or an Appeal. Please note if your I-140 Petition is denied, and you have a pending I-485(s), yours as well as your derivative beneficiary’s I-485(s) will be denied immediately.
What About My Dependents?
Spouses and children (under 21 at the time of I-140 approval) are entitled to permanent residence through your employment-based application. They are eligible for adjustment of status or consular processing.
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