Form I-140, Immigrant Petition for Alien Worker
Form I-140 is used to request green card eligibility on behalf of a foreign worker and is also known as Immigrant Petition for Alien Worker. A green card provides an immigrant worker with legal authorization to work and live in the United States as a permanent resident. Filing Form I-140 is the second step in obtaining an employment-based green card.
Why file Form I-140?
Foreign nationals often apply for a green card as part of their path to US citizenship for employment of education, though some applicants may choose to remain permanent residents instead. Finding an employer to sponsor them speeds up the application process. Gainful employment also provides them with income once they arrive in the United States. In some cases, foreign workers who receive a green card may also bring spouses and children under the age of 21 with them.
Employers who choose to sponsor immigrants may do so for multiple reasons. They may want to hire a world-renowned expert or bring in a successful corporate manager to revitalize US operations. Labor shortages in a specific geographical area may also be a reason for sponsoring foreign workers. Many employers may want to diversify their workforce and offer people who love America an opportunity to immigrate.
Fulfilling labor certification prerequisites
For most immigrant classes, companies must first apply for labor certification. The labor certificate process requires the employer to test whether an American citizen can fill the position they wish to sponsor, since the government wishes to give citizens precedence over non-citizens. These tests must demonstrate a lack of “able, willing, qualified, and available” US workers. It may take a few months to fulfill these requirements.
Applying for labor certification is a multi-step process. Once the application is submitted, it can take up to 90 days to hear back from the Department of Labor. If the labor certification application is audited, the employer has 30 days to respond. If no response is made within that time frame, the application is considered abandoned, and the process must be restarted.
Once the labor certification is approved, it is generally valid for 180 days. It must be filed with a related Immigrant Petition and submitted to US Citizenship and Immigration Services within the 180-day period. Labor certification is an intensive process and must be timed precisely. If you need help navigating these steps, talk to an Expert who can provide advice and recommendations for your unique situation.
Self-filing your petition
You may be able to self-petition under three different qualifying criteria.
Aliens of Extraordinary Ability
The average worker is not going to qualify for EB1(a), Alien of Extraordinary Ability. The requirements for this designation are strict and require significant proof. The wait time, however, is significantly shorter for this category.
This category is reserved for world-changers of significant renown. Albert Einstein, Luciano Pavarotti, and Stephen Hawking would be considered Aliens of Extraordinary Ability.
These persons have generally received an internationally-recognized award, such as a Pulitzer or Nobel Prize. More commonly, these persons will have accumulated national or international acclaim while also being able to provide evidence of at least three significant achievements which has led the worker to be recognized in their field of expertise. The evidence should demonstrate that the worker is part of a minority who have risen to the very top of their field.
“Significant achievements” often include published scholarly research, membership in peer recognized professional organizations for highly qualified individuals, significant commercial success, or other evidence of extraordinary talents, skills, or contributions which would benefit the United States.
Outstanding Professors or Researchers
EB1(b) Outstanding Professor or Researcher is a worker who has at least 3 years of internationally recognized teaching or research in a specific academic area. Although a labor certification is not required, a permanent job offer is. If an Outstanding Professor is applying, a tenured track offer, or comparable position at a university or institute of higher education, is generally required.
Outstanding Researchers must obtain a position to conduct research with a private employer who employs at least 3 persons full-time in research. The institution that the Outstanding Researcher will be joining is expected to have documented accomplishments in the field of expertise of the person applying for EB1(b).
National Interest Waivers
Beneficiaries who apply under this category are requesting a waiver of labor certification. United States Citizenship and Immigration Services (USCIS) decides each case on its individual merits; the burden of proof is on the applicant.
As of early 2017, the long standing three-prong test in Matter of New York State Dep’t of Transp., 22 I&N Dec. 215 had been vacated. The new standard has relaxed the strict proof required in the third prong of the test.
This precedent decision means that USCIS may grant a national interest waiver if the petitioner demonstrates:
- that the foreign national’s proposed endeavor has both substantial merit and national importance;
- that he or she is well positioned to advance the proposed endeavor; and
- that, on balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.
Scholars, Ph.D. students, and researchers are some of the individuals who may qualify for this category.
Filling out Form I-140
Currently, each form consists of nine parts.
- Name or business name, address, and tax number or social security number of the petitioner.
- The type of petition. Only one type is allowed per form; select the correct one or the petition may be rejected.
- The sponsored person’s information, including name, address, assigned immigration numbers, citizenship, and other identifiers. Use the most recent information available; if it does not match USCIS records, the petition will be denied.
- Where the beneficiary will be processed, whether abroad or in the US.
- Additional information about the sponsor, including company size and annual income.
- Information about the beneficiary’s proposed job, title, duties, and salary.
- Identifying information about the worker’s spouse and children who will live with them in the US. Only children under age 21 are eligible for inclusion on a parent’s work visa.
- Employer’s signature and contact information.
- Optional; the employer’s immigration attorney should give their name, contact information, and signature here.
It is vital to fill out the form exactly as instructed. Omissions, mistakes, or illegible writing can all result in rejection of the application. Use only black ink. Do not highlight anything on the form. Print or type in a font that is easy to read.
Checking the version
Make sure you are using the most recent version of the Immigrant Petition. Check the expiration date on the upper right-hand corner of the first page of the form and its instructions. The issue date is listed on the bottom of each page of the form.
If you need more area to answer a question, attach a blank sheet of paper. Print or type your name and Alien Registration number, if applicable, at the top of each sheet. Indicate the page, part, and item number that your answer refers to, then sign and date each sheet.
For instance, if you need more space to provide a layman’s description of the worker’s job, you would note “Part 6, Question 3” before continuing the description.
If you have any questions about filling out the form, or if you need help determining if the answers are sufficient, you can ask an Expert for help.
Requesting premium processing
Premium processing for Form I-140 is available for an additional filing fee of $1,225. Premium processing reduces your processing time from 90 days for an unaudited Form I-140 to 15 days. The clock starts when the Service Center receives the request form. Premium processing does not guarantee approval.
Premium processing eligibility
Only specific categories of aliens are eligible for premium processing. They include:
- Aliens of Extraordinary Ability
- Outstanding Researchers or Professors
- Professional members with advanced degrees or exceptional ability who are not requesting a National Interest Waiver
- Skilled workers
- Other types of workers
If you are filing a second Form I-140 while the first is still pending, USCIS will not accept your premium processing request. Duplicate Labor Certification requests are also ineligible for faster processing. If a decision has already been made regarding your I-140 petition, USCIS will not accept your premium processing request.
Requesting premium processing with the original form
File Form I-907, Request for Premium Processing, along with your original Form I-140 and payment for the additional fee with the correct USCIS processing center. You cannot send premium processing requests to a lockbox facility as they do not process these types of requests.
Upgrading from regular to premium filing
Gather a completed Form I-907, payment for the premium processing fee, and a copy of the I-140 receipt notice. Send them to the Service Center where your I-140 is pending.
Organizing your petition
To ensure your petition is not rejected, verify that all information provided is correct, the appropriate parties have signed the form, and all relevant evidence is included with the form. Do not leave any blanks; write “N/A” in the provided space if the question does not apply to you.
Include one check or money order per application. If you file multiple petitions or applications with a single check, one mistake on a single form will cause all petitions or applications to be rejected. Make sure you have the correct fee; USCIS will not accept petitions with partial fees.
Include the following items with your I-140 petition:
- Completed I-140 Form
- If applicable, the original Labor Certification
- Check or money order for the complete filing fee; include one for each application submitted
- Financial proof that the employer can afford to pay the beneficiary the prevailing wage for their position
- Proof of experience from the beneficiary’s previous employers
- If needed, degree certificates, qualification letters, and education evaluations
Form I-140 should come first, followed by any relevant labor certification, then other supporting documents. If your current attorney prepared the documents for you, fill out and place Form G-28 on top of the stack.
If you are requesting duplicate labor certification or filing an amended petition, place a brightly colored piece of paper directly beneath Form I-140. Use a large, bold font to indicate your need. If you are amending a petition, provide the receipt number of the original petition if available.
Failure to provide the initial evidence requested will result in the rejection of your petition. Provide clear, legible copies of all evidence except for labor certification, which must be the original document.
Submit corresponding English translations for any foreign language documents. A competent translator must certify the translation. Each translation should include a statement that “the translation is true and accurate to the best of the translator’s abilities.” The translator should also sign and date each translation. Staple the translation to the foreign language document.
You may be providing evidence of multiple criteria. Create a list that gives the title of each document and the related criteria for which it serves as proof. Tab and label the bottom of the first page of each evidentiary document.
Submitting an address
The petitioner/employer will always file in the US based on the physical address given on the I-140. If it is filed by a worker as a self-petition, instructions will specify which US address the worker should send it to. The address you use to submit your completed I-140 paperwork also depends on several other factors:
- Whether you are using US mail or a courier service like Fed-Ex
- Whether you are filing other forms with your application
- The state where you will work
- Whether you are upgrading to premium processing
Check the USCIS website to make sure you have the correct address.
Filing concurrent forms
You can file form I-485, an adjustment of status form, with your I-140 petition. Often, filing both forms together is faster than waiting for approval on one, then filing the other. This does not mean both forms will be approved at the same time. However, the rejection of either form is tied to the other. If one application is rejected, the second is automatically rejected as well.
Form I-485 requires an available visa number for approval . The United States limits the number of visa numbers available per country, per year. It may take years for a number to become available. In the meantime, Form I-140 can be approved.
Approval of Form I-140 does not grant an authorized period of stay or confer a particular status. The filing of the I-140 grants a priority date for the worker, a place in line to get their resident status. Filing of the I-140 does nothing more. However, if you are concurrently filing Forms I-140 and I-485, you can also file applications for Employment Authorization Documents (EAD) and Advance Parole.
Appealing a rejected I-140 petition
If your I-140 petition is rejected, you will have 30 days to file an appeal. There is an additional three-day grace period if you receive the denial via mail. Talk to an immigration attorney to determine why the petition was rejected and whether an appeal is in your best interests.
Note that if you have a pending Form I-485, it will automatically be rejected; you must reapply.
Withdrawing an I-140 petition
Applying for a green card is an intricate and time-consuming process. While the sponsor and beneficiary are waiting, company or personal circumstances can change significantly. The petitioner or their Form G-28 representative can send a letter of withdrawal to USCIS.
The letter should include the following information:
- A withdrawal statement
- Receipt number for the I-140 petition
- Petitioner’s name, phone number, and address
- Alien beneficiary’s name and Alien Registration Number, if known
- Signature of the petitioner or their Form G-28 representative
You must mail your withdrawal request to a specific Service Center, depending on where your I-140 Form is pending or was approved. Check the USCIS website to determine whether to mail the withdrawal letter to the Texas Service Center or the Nebraska Service Center.
Porting jobs after the petition is approved
If an alien beneficiary has a pending or approved I-140 and their I-485 has not been approved or rejected after 180 days, they may be able to change employers. This is known as “porting” under Section 204 (j) of the Immigration and Naturalization Act (INA).
To request portability, your new job must be in the same or a similar field and occupational class. Also, your original I-140 must have been valid at the time it was filed. You and your new employer must complete and file Form I-485 Supplement J with USCIS. It must be sent to the same Service Center where your Form I-485 is pending. Your receipt notice will list the appropriate Service Center.
Each request is evaluated on a per-case basis. USCIS may request additional information; a prompt response is advisable. If USCIS determines your request is valid, they will approve your I-140 and Supplement J.
There are a multitude of factors that determine whether an I-140 petition is approved. Planning the process takes careful timing and consideration. If you need help understanding the green card process, talk to a Lawyer. Verified immigration attorneys can help you make sense of the requirements and timelines involved in the application process. Your conversations are one-on-one, anonymous, and can be conducted in the comfort of your home.