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What Is USCIS Form I-140: Immigrant Petition for Alien Worker?

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September 27, 2022

Key Takeaways

Form I-140 forms the basis of nearly every employment-based green card application. Your employer who has agreed to sponsor a work visa for you is responsible for submitting a Form I-140 petition on your behalf to U.S. Citizenship and Immigration Services (USCIS). This article delves into Form I-140, and covers what it is, who’s eligible to file it, when to file it and how to file it with USCIS, and other considerations to bear in mind.

Table of Contents

What Is USCIS Form I-140?

Form I-140, the Immigrant Petition for Alien Workers, is the foundation of any employment-based green card process. U.S. Citizenship and Immigration Services (USCIS) will assess your I-140 petition to confirm that you’re eligible for an immigrant visa. Without this confirmation, you can’t apply for a green card.

Usually, your employer must file Form I-140 for you. Only applicants for the EB1-A or EB-2 visa categories may complete the form themselves. This is called self-petitioning.

When your employer prepares your I-140 petition, they have to confirm they can pay you the appropriate wage. The appropriate wage is listed on their labor certification application. Your employer must also explain that you have the right education and work experience for the job.

When your employer files the form and USCIS approves it, an immigrant visa number will become available to you. You’ll then be able to submit an adjustment of status (AOS) application for permanent residency. To adjust your status, you’ll need to gather supporting documents like an employment verification letter, affidavit of support, physical examination record, and more. In some cases, you’ll need to wait until a visa number becomes available before adjusting your status.

You should review the U.S. Department of State’s Visa Bulletin for more information on timing. You should only adjust your status if you are applying from within the United States. If applying from abroad, you must get a visa from your local U.S. consulate or embassy.

Who Is Eligible To File Form I-140?

U.S. Citizenship and Immigration Services has specific eligibility guidelines for employment-based visas. Your employer may complete Form I-140 if one of the following applies to you:

  • You are an outstanding professor or researcher. You have a minimum of three years of experience in your field. You have gained international recognition for your work.
  • In the last three years, you have held employment for at least one year at a company or firm. You seek to enter the United States to continue working for the same employer. Alternatively, you plan to work for a subsidiary or affiliate of that employer. You must plan to work in an executive or managerial position.
  • You are a member of the professions. This means you have an advanced degree or exceptional talent in the sciences, arts, or business. You will benefit U.S. economic, cultural, or educational interests.
  • You are a skilled worker with at least two years of specialized training or experience. You plan to perform this labor in the United States because qualified U.S. workers were not available.
  • You are a professional with a baccalaureate degree.
  • You are an unskilled worker planning to perform labor in the United States because no qualified U.S. workers were available. This category requires less than two years of specialized training or experience.

Alternatively, you may also self-petition by completing Form I-140 without an employer. You should only do so if one of the following describes you:

  • You have extraordinary talent in the sciences, arts, business, education, or athletics. You are internationally acclaimed in your field. This is called an “Alien of Extraordinary Ability” (EB1-A status).
  • You are a member of the professions. You hold an advanced degree or claim exceptional ability in the sciences, arts, or business. You must also seek an exemption from the job offer requirement in the National Interest Waiver (NIW or EB-2 status).

When To File Form I-140

Before your employer files Form I-140, they’ll need to obtain a few documents in advance. Most I-140 petitions require a labor certification document from the U.S. Department of Labor (DOL). Obtaining this document usually takes several months. EB-1A and EB-2 self-petitioners won’t need to provide labor certification. Read on for more information on how to prepare for the filing process.

Labor Certification Process

Most applicants petition for categories requiring labor certification from the DOL. Be sure to keep this in mind when considering your full application timeline. For the certification process, your employer will need to conduct a test of the U.S. employment market. They will advertise your position based on DOL guidelines and interview any qualified U.S. workers.

If your employer does not find any qualified candidates during this process, they will submit the Application for Permanent Employment Certification (PERM) to the DOL. The DOL will then take several months to process the certification. Recently, applicants have waited six months or longer for processing. Processing time can become more delayed if your employer must undergo an audit. Your employer should only complete Form I-140 after the DOL finishes certifying you.

What Affects Form I-140 Processing Times?

Once U.S. Citizenship and Immigration Services receives your Form I-140 immigrant visa petition, processing times depend on your visa category. Processing also depends on which service center reviews your application. You may review USCIS’s website for more information about current processing times. Most petitioners can purchase premium processing by filing Form I-907: Request for Premium Processing Service. With premium processing, USCIS will process your form within 15 days. Note that premium processing is not always available and requires an additional fee.

Once USCIS has your Form I-140, an immigrant visa number may become available to you. In this case, you may be able to file Form I-485, Application to Register Permanent Residence or Adjust Status. USCIS allows concurrent filing with Form I-140 and Form I-485 for the EB-1, EB-2, or EB-3 categories. You won’t need a final decision on your petition to file the Form I-485 application. Instead, you can file it at the same time as Form I-140. You may visit USCIS’s website to view processing times for Form I-485.

What To Do if USCIS Sends You a Request for Evidence

Sometimes, USCIS may send you a Request for Evidence (RFE). USCIS uses RFEs if they’d like additional information before making a final decision on your Form I-140. RFEs ask for additional documents or information. If you receive an RFE, USCIS will usually give you an 87-day deadline to respond. You must respond in order for USCIS to consider your petition. After responding, you should receive a final decision on your case within 60 to 90 days. If you used premium processing, expect a decision within 15 days of responding.

EB-1A and EB-2 Applicants

Applicants filing for EB1-A or EB-2 status have a slightly different timeline than others. If you’re applying for one of these categories, give yourself at least a few months to gather all the materials you need. Once you have everything you need, you’ll be able to move forward in filing your Form I-140.

If you’re applying for EB1-A or EB-2 status, you’ll need to collect supporting documents to prove your capabilities to the U.S. government. Your evidence will consist of your professional and academic accomplishments and history. You’ll need several supporting letters from experts in your field who can establish your international recognition or exceptional ability. Be sure to ask for these letters as soon as possible and give experts adequate notice of your request. You or your immigration attorney should also draft a cover letter explaining how you meet the eligibility requirements for your preference category.

How To Complete Form I-140

Employers will need to provide general information about the applicant and the intended position in their Form I-140 petition. They’ll also need to describe the applicant’s qualifications and prove their ability to pay the worker at or above the prevailing wage.

General Guidelines

Before filing Form I-140, you (either the self-petitioner or employer) will first need a U.S. Citizenship and Immigration Services Online Account Number. You’ll also need a North American Industry Classification System (NAICS) code and a Standard Occupational Classification (SOC) code.

When you are completing Form I-140, you must answer all questions accurately using black ink. If you are answering a question that does not apply to you, type “N/A” unless you are given other instructions. If you need additional space to answer any questions, you can indicate this in Part 11 (Additional Information) or attach a paper sheet to the end of the form. You’ll need to provide your contact information, certification, declaration, statement, and signature.

Be sure to enter the correct employment classification for which the immigrant is applying (EB-1, EB-2, or EB-3).

Supporting Documents

Any copies of supporting documents included in the application package should be clear and legible. Additionally, certified English translations must accompany any non-English documents or materials.

If you are attaching the immigrant’s academic or professional publications or citations of their work as evidence, you should highlight their name in any articles. You do not need to include full copies of these materials. You should include the title page, bibliography, and the portion that cites the immigrant’s work. Review USCIS’s website for detailed information on required supporting documents based on the applicant’s specific visa category.

Interpreter Requirements

You must also indicate whether you used an interpreter to complete the form. If so, include the interpreter’s contact information, certification, and signature. If anyone else, such as an authorized signatory or petitioner, fills out the petition, they must include their information and signature, along with the date of the petition. If an attorney or another representative assisted you, they'll need to submit either the completed Form G-281 or Form G-28 as well.

Filing Fee

Note that you will need to pay a $700 filing fee for Form I-140. There is no biometrics fee. You should only submit one check per application, attached by paper clip or staple to the form. You should write the applicant’s name on the check.

Proof of Ability To Pay Worker

If you are an employer filing on behalf of a prospective employee, you must provide evidence that you will be able to compensate the worker. Evidence can include the company, firm, or employer’s federal tax returns, annual reports, or audited financial documents. One of the company’s financial officers can also attach a supporting statement. You may also include other documents like bank statements, personnel records, profit and loss statements, and more.

Proof of Employee’s Work Experience

The prospective employee can also provide letters from their previous workplaces to prove that they have the experience and skills necessary for their visa category. Former bosses and colleagues can write these letters. An applicant shouldn’t request letters from their company’s Human Resources (HR) department that simply state their length of employment. Instead, they should get letters from colleagues who knew them and were familiar with their work.

Additional Considerations: Immigrant Petition for Alien Worker

Petitioners and applicants often have some frequently asked questions (FAQs) about mistakes or special circumstances relating to parts of Form I-140 and Form I-485. Read on if you’d like further guidance on these specific issues.

Visa Categories

Sometimes, applicants realize after submitting their form that they selected the incorrect visa category in Part 2. After U.S. Citizenship and Immigration Services receives your Form I-140, they’ll send you a Form I-797 receipt notice. This receipt notice will list the visa category you selected.

If you notice a discrepancy, you or your petitioner should contact USCIS’s National Customer Service Center at 1-800-375-5283 or 1-800-767-1833 (TTY) as soon as possible. When you call USCIS, you should request a change in your visa classification. USCIS will then decide whether to change your classification.

In other circumstances, applicants may be wondering whether they can request that USCIS consider them for multiple visa categories. This is possible, but consideration for multiple categories requires that you file a separate Form I-140 immigrant petition and fee for each category.

Withdrawing a Petition

Petitioners or their Form G-28 representatives are able to withdraw their Form I-140 petition if they would like. Petitioners typically withdraw if the foreign worker is no longer interested in a U.S.-based position or moving to the United States. If USCIS approves a worker’s Form I-140 and the employer has not withdrawn the petition for at least 180 days, the petition remains valid. The worker will still receive any benefits of their Form I-140 approval.

If the employer withdraws within 180 days of approval, USCIS will consider the case withdrawn. To withdraw, employers must send a letter to USCIS requesting the withdrawal. Withdrawal requests should include the following components:

  • The Form I-140 receipt number.
  • The petitioner’s name, address, and contact information.
  • The petitioner or Form G-28 representative’s signature.
  • A statement confirming that the petitioner would like to withdraw their petition.
  • The immigrant’s name and Alien Registration Number, if applicable.

Changing Employment

If you’re a foreign worker who receives a new U.S. job offer at a different company while working for the company that petitioned for you, you’ll need to restart the petition process with the new employer. If USCIS has already approved the original petition and the petition remained approved for at least 180 days, the petitioner cannot revoke the application. At this point, the worker will have already received a priority visa date for their category. To get a green card based on their I-140 approval, the worker will need to find another job offer or have a new petition filed on their behalf.

Self-petitioner applicants can leave their current jobs without affecting their pending Form I-485. Since their petition did not depend on a specific employer, they may change positions while waiting for a decision. However, a self-petitioner may need to prove that any change in position is still related to their main professional field. They should continue to work in the field that qualified them to file Form I-140 in the first place. If self-petitioners receive a Request for Evidence (RFE) or interview in response to a Form I-485 petition and no longer have the qualifications stated in their Form I-140, they may face rejection.

Applicants sponsored by an employer can also change employers while their Form I-485 is pending. Their new job must remain in a similar occupation classification. If they change jobs while USCIS adjudicates their Form I-485, they should request a port under AC21 provisions.

Changing Employers

Suppose you are an employer who has recently taken over the responsibilities of a predecessor employer at your company or firm. You may have prospective hires undergoing the petition process. If you are a successor employer, you’ll be able to use your predecessor’s approved labor certification to file the immigrant’s Form I-140 petition. However, you must first establish a successor-in-interest (SII) connection with your predecessor employer.

Suppose USCIS had already processed your predecessor's Form I-140 petition and given the immigrant a visa priority date. In most cases, they can usually rely on the original priority date.

Conclusion

Applying for an employment-based green card can be complicated, but help is available. If you are eligible, our free web app will walk you through the green card application process and help you prepare and file your application with the U.S. government. If our app isn’t a good fit, we may be able to refer you to an experienced immigration attorney to help. Click "Get Started" to see how we can help make your American dream come true!

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