What if Form I-140?
Form I-140 is an immigration petition for individuals seeking to become a permanent resident in the United States based on employment.
It is the official form used by the U.S. Citizenship and Immigration Services (USCIS) to determine if an individual has the skills and qualifications necessary to become a permanent resident.
In this blog post, we’ll discuss what Form I-140 is, what it is used for, and what other documents may be required to complete the application process. We’ll also discuss the processing time, filing fees and any additional requirements needed to be eligible for a green card.
How to file Form I-140 with USCIS
The employment-based green card process involves three steps:
After the Department of Labor (DOL) approves the first step (Labor certification, also known as “PERM”), the employer has six months to submit an I-140 Immigrant Petition for Alien Worker to the United States Citizenship and Immigration Services (USCIS).
In employment-based green card applications, the U.S. employer is called “Petitioner” and the foreign employee is called “Beneficiary”.
The I-140 is the employer’s immigrant visa petition for the foreign national employee.
The foreign national’s priority date in the Visa Bulletin is established by the date the PERM was filed, but it is the approval of the I-140 that confirms the priority date for the foreign national.
Once the priority date has been established, the foreign national will be able to keep that same priority date for any future applications.
This means that if they work with another employer, the priority date from the previous petition can still be used.
It is important to note that each I-140 must include an original PERM or Form 9089.
The beneficiary’s priority date from the earlier approved I-140 can be applied to any new I-140 petitions that are filed in the future, even if the petition is filed by a different employer.
It is possible for the same approved PERM to be used to file multiple I-140s in both the EB-2 and EB-3 categories, which is commonly known as “upgrading” and “downgrading.”
The Department of Labor (DOL) requires that an approved PERM be used to submit an I-140 within 180 days of the PERM’s approval.
However, the United States Citizenship and Immigration Services (USCIS) makes an exception to this rule for any subsequent I-140s.
If an I-140 is denied, or if the petitioner wants to upgrade or downgrade, a new petition can be filed outside of the 180-day validity period.
The USCIS released a memorandum stating that all I-140s must be accompanied by an approved Labor Certification unless the petitioner requests a duplicate PERM approval or is submitting an amended I-140 of the previously filed I-140 with the original PERM approval.
Although filing an amendment can result in a change in the employment-based category, USCIS has typically accepted I-140 petitions to lower it to EB-3 when filed anew, even without an original PERM approval.
The application then requests basic biographical information about the petitioner and applicant.
If the applicant is currently in the US, they must include their current status and date of most recent entry.
The form also requires general information about the employer, such as the type of business, year established, number of employees, and gross and net annual income.
Additionally, the application requests information about the position which the PERM is based on.
This includes the job title, Standard Occupational Classification (SOC) code from the PWD, a description of the duties, the offered wage, and a “YES” or “NO” answer to whether the position is full-time, permanent, and new.
The applicant must also list the worksite location for the position. Finally, the foreign national’s spouse and children are included on the application.
When filing petitions for employment-based immigrants that require an offer of employment, employers must provide evidence that they can pay the stated wage.
This evidence must be provided at the time of the priority date and must remain in place until the beneficiary obtains permanent residence.
This can take the form of annual reports, tax returns, or audited financial statements.
For employers with 100 or more workers, a statement from a financial officer may suffice.
Additional evidence such as profit/loss statements, bank account records, or personnel records may be requested by USCIS.
In order to demonstrate the ability to pay the offered salary, the company should provide an annual report, federal tax return, or audited financial statement.
If the beneficiary is already employed in the given position, evidence that the company is paying the salary should be provided.
USCIS must review the evidence to determine if the employer can pay the offered wage, either through net income, net current assets, or proof of employment and payment of the wage.
Small businesses often show a loss or negative net income.
To demonstrate the ability to pay, it is helpful to provide evidence that the recipient is already being paid, as well as other evidence that the company is operating a normal payroll (e.g., IRS 941 Quarterly Payroll reports).
However, newer businesses may not have these documents yet, so they must provide additional evidence of sufficient working capital to pay the proposed salary, such as bank statements.
If the company is funded by venture capital, the applicant may provide term sheets or financial instruments (like the Simple Agreement for Future Equity (SAFE)) to prove that there are sufficient funds, beyond bank statements.
However, USCIS is not required to accept them.
For sole proprietorships that cannot produce such documents, the Administrative Appeals Office (AAO) has stated that adjudicators must take the petitioner’s business accounting into consideration when making the ability to pay determinations.
In such cases, the employer should provide their federal income tax return to USCIS so that their total income and net current assets can be taken into consideration. Lastly, the adjudicator may consider the totality of the evidence, including a variety of the following factors:
- The number of years the petitioner has been doing business;
- The established historical growth of the petitioner’s business;
- The overall number of employees;
- The occurrences of any uncharacteristic business expenditure or losses;
- The petitioner’s reputation within its industry;
- Whether the beneficiary is replacing a former employee or an outsourced service; and
- Any other evidence that USCIS deems relevant to the petitioner’s ability to pay the proffered wage.
It is important to make sure that the beneficiary of Form I-140 is truly qualified for the position before beginning the PERM process.
The foreign national must provide proof that they have the correct education credentials and experience for the job which is listed on the PERM.
This evidence can consist of diplomas, college transcripts, and assessments of any foreign degrees that are necessary.
To prove experience, the beneficiary should give experience letters from their former employers to show they had the relevant experience in past roles.
When writing letters, it is ideal if they can be written on company letterhead.
However, if the writer is no longer with that company, or the company no longer exists, a letter can still be provided without letterhead – as long as it includes the writer’s name, address, title with the company, the dates the beneficiary was in the role(s) with the company, and a detailed description of the duties performed while in those roles.
This last part is especially important, as the duties should reflect the exact skills needed for the position.
It is best if this description is word-for-word or at least very close, so that the adjudicator can easily determine that the experience was gained during the beneficiary’s time with the previous company.
If a beneficiary has gained the necessary experience while working for themselves, they can still provide evidence of this experience with letters of support.
They can acquire these from former co-founders, board members, or shareholders.
Alternatively, they can request a letter from people who are familiar with the role they previously held, such as a local chamber of commerce or a customer/company.
In these instances, it should be clarified how the two parties are connected.
Additionally, people who have been self-employed should provide proof of their previous business, such as incorporation documents or business licenses.
Unlike the PERM process, anyone can pay the fees related to the I-140.
Once the I-140 has been approved, the beneficiary’s priority date is secured and they can complete the last step of the green card process – Adjustment of Status (if beneficiary is located in the U.S.) or Consular Processing (if beneficiary is located abroad).
Who is Eligible to File Form I-140?
Form I-140 is a petition filed by U.S. employers to sponsor foreign workers for permanent residency in certain employment-based immigrant visa categories.
This form can only be submitted by U.S. employers or their representatives.
The employment-based immigrant visa categories for which Form I-140 can be filed include:
- EB-1, Alien of Extraordinary Ability
- EB-2, Member of the professions holding an advanced degree or its equivalent, or a person who has exceptional ability
- EB-2 (NIW), National Interest Waiver
- EB-3, Skilled worker, professional, or unskilled worker
Some beneficiaries are allowed to submit Form I-140 without a U.S. job offer (for example, in EB-1A and EB-2 NIW categories). All other beneficiaries must have a U.S. employer who will file Form I-140 to sponsor them for green cards.
Form I-140 Filing Fees
Current Form I-140 basic filing fee is $700.
Petitioners can pay an optional Premium Processing Fee of $2,500 to receive an USCIS decision in 15 days after Form I-140 is filed.
How to pay USCIS fees
Form I-140 filing fee can be paid with a money order, personal check, cashier’s check, or credit card using Form G-1450, Authorization for Credit Card Transactions.
Make sure to make the check payable to the U.S. Department of Homeland Security if you choose to pay with a check.
Please be aware that all USCIS filing fees are non-refundable and final.
You can use the USCIS Fee Calculator to help determine the amount you need to pay.
You must submit separate payments for each filing fee as USCIS is transitioning to electronically processing immigration benefit requests.
USCIS may reject your entire package if you pay for multiple forms with a combined payment.
Form I-140 Checklist of Required Documents
Below you can find a basic checklist of supporting documents that must be submitted with Form I-140 to USCIS.
Note: some beneficiaries can file Form I-485 at the same time as Form I-140 is filed (“concurrent” filing). The checklist of supporting documents below is for Form I-140 only.
|Required evidence||Examples of acceptable documents|
|Approved labor certification (PERM)||
|Documentation of the Petitioner’s ability to pay the offered wages||
|If filing for EB-2 Professional with Advanced Degree||
|If filing for EB-2 for Alien of Exceptional Ability||
|If filing for EB-3 Professional||
|If filing for EB-3 Skilled Worker or Unskilled Worker||
|I-140 Approval Notice from prior I-140 if recapturing Priority Date from previously approved I-140||
|I-140 Receipt Notice or Approval Notice if filing based on certified PERM that was previously filed with a prior I-140||
Form I-140 Processing Time
The processing time for Form I-140 varies depending on a few factors, such as the backlog of the USCIS center processing the application and the complexity of the case.
USCIS website gives updates on processing times regularly, but they are just estimates and could be different from actual processing.
You can check the current processing times for your specific visa category and USCIS service center here.
Premium Processing Fee
The USCIS allows for I-140s which are based on PERM to be quickly processed for an additional premium processing fee of $2,500.
This means the case will be decided within 15 days.