I-140 Status Related

Form I-140 is the form used by an alien worker to petition to become a permanent resident in the United States. This is the initial step towards citizenship. In order to get started and ensure the petition is filed correctly, many questions may arise. Below are some of the top questions answered by Experts on I-140.

Will processing of I-485 application continue when an Request for Evidence (RFE) is sought on the I-140?

A I-485 application cannot be processed without an approved I-140. In the event a Request for Evidence (RFE) notice is issued, the I-140 as well as I-485 process will be on hold until the information required for the RFE is provided by the applicant.

Can another employer file for extension if the current employer withdraws I-140 while on H1B visa? What are the options to retain the H1B in case an extension is not allowed?

Once an I-140 is withdrawn it ceases to exist. It cannot be used by another employer for extension. In case you have completed six years, the U.S. Citizenship and Immigration Services (USCIS) would most likely re-open the H1B file and cancel any extension beyond the sixth year. If you have spent a minimum of 365 days outside the U.S. while on a H1B visa, the new employer could file for a fresh PERM (Application for Permanent Labor Certification, through the Department of Labor's Program Electronic Review Management (PERM) system). The new PERM may be used to extend beyond six years. If you have not left the country at all the only option would be to leave the U.S. for a year and obtain another H1B, which would provide another six years.

If I-140 and I-485 are filed concurrently, would the approval also happen together?

In most cases, the I-485 approval would take longer than the I-140, usually six months or more. During the time the I-485 is pending, it would wise to continue with the same employer for six months or more. The same would be the case after the approval comes through as well.

If you hold an approved I-140 and would like to change jobs, can the priority date be retained? If the approved I-140 is revoked by the previous company or by USCIS, is the priority date also revoked?

In case of change in employment, the approved I-140 is most likely to be revoked by the previous company. If this occurs prior to a new I-140 being filed by the new company, the priority date cannot be retained. Similarly if USCIS withdraws the I-140 for reasons such as fraud or misrepresentation, the priority date is also revoked.

If you have an approved I-140 which is of value to you, however the petitioner or company is dissolved, is a 3 year extension (beyond 6 years) on H1B possible?

A company that is a “successor in interest” (acquired by another company), would be qualified to take on an I-140 and retain it. If the company is completely dissolved or has no successor, then a new certification of labor as well as new I-140 need to be filed. The labor certification needs to be pending for 365 days or more or I-140 needs to be approved for any extension on H1B to be allowed. If the current H1B is valid he/she can apply for a transfer but not an extension.

If an employee stops working for an employer after obtaining permanent resident status, can the employer revoke the I-140? What are the implications on status if I-140 petition is revoked after I-485 approval?

In most cases, an employer will not be able to revoke an approved I-140 petition; hence the lawful status remains unaltered. The employee would continue holding a legal permanent resident status. In some cases, an employee choosing not to continue working for an employer, who filed for his/her green card, can be the basis of denial of citizenship under the good moral character requirement. This could be the case, if the reasons were because of intent to deceive to obtain a green card. However, if the employee left for other reasons, the federal law does not require the employee to be employed in the same firm for a specific period of time.

How long does it take for a receipt number to be generated after mailing the I-140 form to USCIS? Is it instant or does it take 3 to 4 days time? Does the USCIS provide a receipt number only once the check clears?

Usually once the I-140 is received by USCIS, an electronic record is created in which receipt notice number is assigned. There is no fixed time period in which an electronic record gets created. It could be instantaneous or take a few days. This depends on the service center where the petition was received. In most cases, the receipt notice number is received by the employer around 10 to 14 days after submission. Check clearance is immaterial for a receipt notice number to be created.

Immigration rules and regulations are vast. It can be stressful filing for citizenship. The I-140 is just the beginning of the process. Understanding the implications in various scenarios is crucial to maintain lawful status and to move towards attainment of citizenship.