I-140 Petition Process

The I-140 petition is the second step in the employer based green card process. After the U.S. Department of Labor (DOL) approves the PERM Labor Certification application, the U.S. employer can file an Form I-140 petition with U.S. Citizenship and Immigration Services (USCIS). The Form I-140 petition should includes the original approved PERM application in which the U.S. employer and the alien beneficiary worker must sign it.

Required Documentation:

When filing the I-140 petition, the employer must demonstrate financial stability, an ability to properly pay the applicant from the date the PERM application was filed through green card approval and a desire to continue the applicant's employment. The employee must submit credible documentation verifying that he or she met all minimum job requirements for the sponsored PERM position before accepting employment in that position. This documentation generally includes educational diplomas and transcripts, detailed letters from prior employers, licenses/certificates and continuing education certificates.

How much time to process form I-140

Generally, USCIS may take at least four months for I-140 decisions, and it can take USCIS much longer to adjudicate the Form I-140 petitions. Also, there is an expediting option available, Form I-140 Premium Service, for Form I-140 petition. The employer can pay an extra fee and request premium processing within 15 calendar days of receipt. A USCIS officer will review the application and determine the appropriate action which would be an approval. Alternatively, an USCIS officer could issue a Request for Further Evidence (RFE), or a Notice of Intent to Deny (NOID). For the case of RFE, USCIS will make a decision within 15 days of receipt of the response.

In reviewing the I-140 petition, the USCIS will review the employee’s eligibility for the I-140 classification and also reviews the employer’s eligibility to file a Form I-140. The USCIS’s approval of Form I-140 establishes the employee’s eligibility for the Form I485 Application to Adjust Status to Permanent Resident.

Preference Category:

In Form I-140 Immigrant Visa Petition, employers must select the appropriate visa preference category as the basis for I-140 approval. The visa preference category is determined by the employee’s basis of eligibility for the immigrant visa.

The following are the most common types of employment based preference categories for permanent residency:

  • EB1 (Employment Based First Preference): The EB1 category does not require the filing of a labor certification with the Department of Labor (DOL). Instead, employers can directly file Form I-140 Immigrant Visa Petition requesting EB1 classification. This category is designated for:
    1) Multinational Managers/Executives who have been employed with a multinational company in a managerial or executive capacity abroad and will continue to do so in the US parent company or branch affiliate.
    2) Outstanding Researchers/Professors.
    3) Individuals who can demonstrate Extraordinary Ability in the arts, sciences or business.
  • EB2 (Employment Based Second Preference): The EB2 category does require that the employer obtain an approved labor certification as the basis for the Form I-140 petition. This category is designated for situations where the labor certification requires the following degrees:
    - A Masters degree or higher OR
    - A Bachelors degree plus five (5) years of post-bachelors experience.
  • EB3 (Employment Based Third Preference)The EB3 category does require that the employer obtain an approved labor certification as the basis for the Form I140 petition. This category is designated for situations where the labor certification requires at least at least 2 years of experience up to and including Bachelors degree plus 5 years of experience.

I-140 approval provides an additional, great benefit to H-1B applicants and their U.S. employers. Normally a person can only retain H-1B status for six years and then must leave the United States for at least one year, before applying for H-1B status again. If the I-140 petition is approved before the sixth year expiration, the applicant will be eligible for three year H-1B extensions.

After I-140 approved, Can Green Card apply immediately?

All green card applicants comes into five categories and then allows a certain number of people in each category to apply for a green card per year. The applicant's category is determined based on the education and experience required for the sponsored position. Wait times are also determined by the applicant's birth country, with India, Mexico, China and the Philippines having separate quotas that are generally longer than for other applicants. Some applicants are permitted to file their green card application simultaneously with the I-140 petition. Others will wait 1-10 years for the opportunity to file. The employee's educational and experience level is generally not the determinative factor in assigning the category level.

The information is provided for general informational and educational purposes only and is not a substitute for professional advice. Before making any decision, consult with the appropriate professionals. Please refer our Disclaimer for details.

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