Form I-140: Alien Worker Petition Guide
Form I-140 is a crucial first step for many people seeking a green card through employment. If your U.S. employer wants to sponsor you for a work visa, they must file this petition with USCIS on your behalf. This alien worker petition guide will explain everything you need to know about Form I-140, including who can file it, when and where to submit it, the timeline and process for filing it with USCIS, and more. We’ll also cover some important things to remember if you want to work in the U.S. and wish for permanent residency.
What Is Form I-140?
It is a crucial employment-based immigration form called the “Immigrant Petition for Alien Worker.” Form I-140 is what U.S. employers use to sponsor international workers for green cards based on employment. The form serves two purposes. First, it shows that the U.S. company has a legitimate job opening they can’t fill with qualified American workers. Second, it proves that the foreign worker they’re sponsoring has the skills and experience needed for the position.
IMPORTANT! Form 1-140 comes with exceptions for specific visa categories. For EB-1A visa (alien of extraordinary ability) and EB-2 visa – National Interest Waiver, the international worker can take the route of I-40 direct filing and submit the petition for themselves.
Eligibility Criteria for the I-140 Form
To discuss eligibility in Form I 140, we need to clarify two aspects: who files the I-140 petition (and pays for its associated costs) and what foreign worker visa categories and petitions require submission.
Who Can File Form I-140?
While Form I-140 is the key to getting a green card through a job offer, only your U.S. employer or someone they authorize can typically file it for you. This is because the form helps prove two things:
- The company has a job opening: They need to show there aren’t enough qualified U.S. workers to fill the position.
- You have the skills for the job: The form demonstrates your qualifications, education, and experience to handle your future U.S. job duties.
The USCIS Employment-Based Immigration Visa Categories for Which Form I-140 Must Be Filed
USCIS divides employment-based green cards (EB visas) into five preference categories. Each category has its eligibility requirements, processing times, and visa backlogs. Generally, the higher the preference number, the stricter the requirements for filing Form I-140 (Immigrant Petition for Alien Worker). However, the upside is that processing times are often faster due to fewer applicants.
EB-1A and EB-2 NIW: Self-Sponsorship with Higher Standards
The EB-1A and EB-2 NIW categories are attractive because they don’t require a job offer or labor certification, which can be lengthy and complex. However, the criteria for eligibility are pretty demanding:
- EB-1A (Extraordinary Ability): This category is designed for individuals who have reached the top of their fields. Think Nobel Prize winners or recipients of the Fields Medal in mathematics. Having sustained national or international acclaim is a must.
- EB-2 NIW: Here, the focus is on demonstrating that your work in the U.S. will be of substantial merit and national importance. This could involve research with the potential to make significant breakthroughs, or your expertise is crucial to solving a critical national challenge (in the economy, healthcare, society, culture, etc.).
While EB-1A and EB-2 NIW offer self-sponsorship and I-140 direct filing, be aware of the other employment-based visa categories (EB-2, EB-3, and EB-4) that typically require employer sponsorship:
- EB-2 (Advanced Degree or Exceptional Ability): The exceptional ability visa category caters to individuals with advanced degrees (Master’s or higher) in specific fields or those with exceptional aptitudes in the arts, sciences, or business. Think of CEOs of international companies or individuals with groundbreaking inventions.
- EB-3 (Skilled Workers, Professionals, and Other Workers): This is a broad visa category for professionals, skilled workers, and other workers who can help address labor shortages in the U.S. This could include those with Bachelor’s degrees, specialized training, or even certain manual labor positions.
- EB-4 (Special Immigrants): This category addresses specific groups of foreign nationals, such as religious workers, certain employees of the U.S. government abroad, or retired employees of international organizations.
IMPORTANT! The EB 5 visa category is reserved for business investors willing to invest significant capital into a new U.S. commercial enterprise that creates a minimum of 10 full-time jobs for U.S. workers. However, unlike the other categories mentioned, the EB 5 visa requires filing Form I-526, not Form I-140.
IMPORTANT! Even within these categories, getting approved isn’t guaranteed. Each visa type has specific requirements regarding your skills and whether there are genuinely no qualified U.S. workers. So, before filing, your employer (or you, if eligible for I-140 direct filing) should carefully check all the details to ensure a smooth application process.
Eligibility Requirements for Form I-40 Employer-Sponsored Green Cards: Roundup
The American dream of permanent residency often starts with a job offer. USCIS has specific guidelines for international workers seeking green cards through employer sponsorship in this context. These criteria determine whether your employer can file Form I-140 on your behalf, paving the way for your permanent residency in the United States.
This section of our I-140 guide focuses on the most common scenario: employer sponsorship. Let’s see the different categories of eligibility that determine whether your employer can file Form I-140 on your behalf, initiating the process for your green card.
1. Renowned Academics and Researchers
- Are you a professor or researcher with exceptional talent?
- Do you have at least three years of experience under your belt?
- Has your work garnered international recognition?
If you meet these requirements, you qualify for employer sponsorship under this category, and your employer can file Form I-140.
2. Multinational Executives and Managers
- Have you been employed by a specific company or firm for at least one year in the past three years?
- Do you plan to work in the United States for the same employer or a subsidiary or affiliate?
- Crucially, is your position in an executive or managerial capacity?
Meeting these criteria allows your employer to sponsor your green card application and start the process of filing form I-140.
3. Professionals with Advanced Degrees or Exceptional Ability
- Do you hold an advanced degree or possess exceptional talent in a field related to science, arts, or business?
- Can you demonstrate that your work would benefit U.S. interests in the economic, cultural, or educational sectors?
If so, you may be eligible for employer sponsorship and I-140 form submission under this category.
4. Skilled Workers Addressing Labor Shortages
- Are you a skilled worker with at least two years of specialized training or experience?
- Is it your intention to perform this specific work in the United States?
- Importantly, does your position address a labor shortage, meaning qualified U.S. workers weren’t available?
Fulfilling these criteria allows your employer to sponsor your green card through Form I-140 as a skilled worker.
5. Professionals with Bachelor's Degrees
This category is for you if you are a professional with a Bachelor’s degree in a relevant field. Employer sponsorship through I-140 might be possible if your qualifications meet the position’s specific needs.
6. Unskilled Workers Filling Labor Gaps
- Are you planning to perform work in the United States that requires less than two years of specialized training or experience?
- Similar to skilled workers, does your role address a labor shortage where qualified U.S. workers were unavailable?
If so, you may be eligible for employer sponsorship and I-140 application under the unskilled worker category.
IMPORTANT! These eligibility criteria provide a general overview, and specific requirements can vary depending on the category and the particulars of your situation. Working with immigration lawyers and service providers is highly recommended to determine the best path forward for your employer-sponsored green card application.
What Documents Are Required to File Form I-140?
Obtaining a green card through employment sponsorship involves a two-step process: securing a labor certification and filing Form I-140. This guide clarifies the order and documents involved in each step.
Step 1: Your Employer Obtains the Labor Certification (Except EB-1A & EB-2 NIW)
Before your employer files Form I-140, they typically need a Labor Certification from the U.S. Department of Labor. This document verifies that your position has been advertised to U.S. workers, and no qualified American candidates were found. Obtaining the labor certification can take several months, so factor this into your overall application timeline.
Here’s what your employer must do to secure labor certification:
- Conduct a “good faith” test of the U.S. labor market by advertising the position according to DOL guidelines.
- Interview any qualified U.S. applicants who respond to the advertisement.
- If no qualified U.S. workers are found, submit an Application for Permanent Employment Certification (PERM) to the DOL.
Step 2: Your Employer Files Form I-140
Once the DOL grants labor certification (except for EB-1A and EB-2 NIW self-petitions), your employer can file Form I-140 on your behalf. This petition formally establishes your eligibility for the specific employment-based green card category.
Required Documents for Form I-140 Filing
Here are the documents necessary for a successful I-140 application, categorized as follows:
Category
Employer Information
Beneficiary Information
Job Information
Required Form I-140 Documents
* Proof of ability to pay the foreign worker's wage (financial statements, tax returns, etc.)
* Evidence of their ability to hire and supervise you (the foreign worker)
* Copy of your resume or CV
* Education qualifications (diplomas, transcripts, degrees)
* Recommendation letters from previous employers, peers, colleagues
* Evidence of relevant work experience (letters from previous employers, tax records, etc.)
* Valid passport
* Proof of current work visa status (if applicable)
* I-94 Travel Record (if applicable)
* Labor certification (PERM) certified by DOL (except EB-1A & EB-2 NIW)
* Detailed job description (title, duties, responsibilities)
* Job offer letter or employment verification letter
Employers must establish their financial capacity to pay the offered wage when sponsoring a foreign worker for an employment-based green card through Form I-140. Here’s a breakdown of acceptable evidence:
Financial Strength Documentation
- Tax returns & financial statements: Copies of the company’s federal tax returns (preferred), annual reports, or audited financial documents provide a comprehensive overview of your employer’s financial health.
- Supporting statement from a financial officer: A statement from a qualified financial officer attached to these documents can further clarify your employer’s ability to meet the offered salary commitment.
Additional Supporting Evidence for Your Employer (Optional)
While not mandatory, your employer should consider including the following to strengthen the I-140 application:
- Bank statements: Recent statements demonstrating sufficient funds to cover the offered wage can bolster their financial standing.
- Personnel records: Documentation of existing employee compensation structures can showcase their ability to manage payroll expenses.
- Profit and loss statements: For businesses with fluctuating income, profit and loss statements can provide a more nuanced picture of your employer’s financial stability.
Moreover, the prospective employee (beneficiary, you) also plays a crucial role in supporting the I-140 petition by demonstrating their relevant work experience. Here’s what to focus on:
Recommendation Letters from Former Employers and Peers
- Focus on specific skills and achievements: Letters from former supervisors or colleagues directly familiar with your work are far more valuable than generic HR-issued employment verification letters.
- Content is vital: Encourage the recommender to detail your specific skills, accomplishments, and contributions that align with the requirements of the visa category.
Form I-140: Supporting Documentation and Additional Considerations
Following the submission of Form I-140, USCIS will review the petition alongside any accompanying documentation. Here is what you need to know to ensure the application package is complete and compliant:
I-140 Supporting Evidence Requirements
- Non-English documents: Any document presented in a foreign language needs a certified English translation.
- Documents highlighting your achievements (optional): If your employer submits academic publications or references to your work as evidence, their name should be marked within the relevant sections. Submitting full publications is unnecessary. Your employer should include only the title page, bibliography, and specific portions mentioning your work.
- Category-specific requirements: USCIS maintains a comprehensive resource on its website outlining the required supporting documents. It’s crucial to consult the USCIS page regarding the required initial evidence for Form I-140 for each worker type to ensure your application meets the specific documentation needs for your petition.
I-140 Interpreter and Representative Information
- Interpreter usage: Upon submitting Form I-140, the petitioner must indicate if an interpreter assisted with completing Form I-140. If so, your employer must provide the interpreter’s contact information, relevant certification details (if applicable), and their signature.
- Form completion: If an employer’s authorized representative completes the form, they must include their contact information, signature, and completion date on the application.
- Legal representation: If an attorney or representative assists your employer with the application, they will typically submit Form G-281 or Form G-28.
IMPORTANT! All copies of submitted documents must be clear, legible, and suitable for photocopying. By adhering to these guidelines and carefully reviewing USCIS’s category-specific requirements, you can ensure the Form I-140 application package is complete and professionally presented, potentially expediting the processing timeline.
How to File the Alien Worker Petition: Step-by-step Guide and I-140 Instructions
Filing the Alien Worker Petition with USCIS needs to factor in a few requirements regarding the I-140 Form edition, where to file the I-140, and the I-140 application process concerning the documentation needed. For a more straightforward presentation, let’s discuss each aspect separately so you know what you (the beneficiary) and your employer (the petitioner) must know and do.
The accepted I-140 form editions are the following:
- Postmarked before April 1, 2024: USCIS will accept the edition of Form I-140 dated May 31, 2022, only if it is postmarked before April 1, 2024.
- Postmarked on or after April 1, 2024: USCIS will only accept the edition of Form I-140 dated April 1, 2024, if it’s postmarked on or after April 1, 2024.
IMPORTANT! A preview version of Form I-140 (dated 04/01/24) and its accompanying instructions was released on March 1, 2024. Please note that USCIS will not accept this preview version for filing before April 1, 2024. For a successful Form I-140 submission, your employer must use the correct edition based on the postmark date. They should fill in the most recent edition, dated April 1, 2024, for any applications filed on or after April 1, 2024!
Where to File I-140
USCIS offers two options for submitting the Immigrant Petition for Alien Worker: electronic filing (e-filing) and traditional mail.
E-filing I-140 for Efficiency
- Convenience: The petitioner can submit Form I-140 electronically, potentially streamlining the initial filing process.
- Automatic routing: When e-filing, USCIS will automatically route the petition to the appropriate Service Center for processing.
- Receipt with details: The petitioner receives a confirmation notification with a receipt number and the specific Service Center handling the case.
If the employer submits form I-140 by email, they should carefully review the e-filing receipt and make a note of the designated Service Center location. More importantly, all future communication, including the submission of supporting evidence, must be directed to the Service Center address listed on the e-filing receipt, not the general USCIS address.
Traditional Mail for I-140 Paper Submissions
Suppose your employer files the I-140 by mail. In that case, USCIS provides specific mailing addresses based on whether Form I-140 is submitted alone or alongside another form (which you, the beneficiary, can also submit, like Form I-485). These instructions are on the USCIS page, Direct Filing Addresses for Form I-140.
To receive email and text message updates when USCIS accepts the I-140 application at a lockbox facility, your employer must complete the E-Notification of Application/Petition Acceptance and send it clipped on the first page of the paper I-140 form package.
General Guidelines for Filing Form I-140
USCIS requires careful attention to detail when your U.S. employer files Form I-140 on your behalf. Here are some of the most critical aspects they consider to contribute to a successful application:
Authorized Signature and Employer Representative
Only a qualified representative from your employer can sign the petition. This individual must hold a position within the company that grants them the authority to sign legal documents (e.g., company officer) and possess firsthand knowledge of the information presented in the petition.
USCIS will reject applications signed with a stamped or typed name instead of a handwritten signature. While the original signed form is preferred, photocopied, faxed, or scanned copies of the signature are acceptable for filing purposes as long as the copy accurately reflects the original document.
Filing Fee and Supporting Documentation
The petition must be accompanied by the designated filing fee outlined in the USCIS instructions. The company hiring you in the U.S. must compile and submit all supporting evidence and documentation. This ensures that USCIS has all the necessary information to evaluate your eligibility for the requested employment-based green card.
Biometric Services Appointment for the Beneficiary
Be prepared for the possibility of a biometric services appointment request from USCIS. This appointment may involve interviewing or collecting biometric data (fingerprints, photograph, signature) to verify your identity, gather further information, and conduct essential background checks.
USCIS will notify your U.S. employer in writing if such an appointment is required. The notification will detail the date, time, and location of your appointment at a designated USCIS Application Support Center or U.S. Embassy/Consulate (if you are overseas).
If you attend a biometric services appointment, you will be required to sign an oath confirming the following:
- You provided or authorized all the information included in the petition.
- You have reviewed and understood all the information submitted in the petition.
- All the information provided was accurate and truthful at the time of filing.
It’s important to remember that failing to attend a scheduled biometric appointment may result in USCIS denying the I-140 petition.
Photocopies and Translation Requirements
Legible photocopies are generally preferred when submitting documents with the I-140 application unless the USCIS instructions specifically require originals. USCIS may request original documents during processing and return them once the paperwork is no longer needed. Your employer should avoid submitting original documents that are not explicitly requested, as they may be destroyed upon receipt.
If any document your U.S. employer or their representative submits is in a language other than English, they must also include a certified English translation completed by a qualified translator. The translator must provide a certification document signed by them, verifying the translation’s accuracy and completeness. This certification should also include the translator’s printed name, date of signature, and contact information.
By carefully following these guidelines and ensuring your U.S. employer adheres to the submission requirements, you can significantly increase the chances of a smooth and efficient processing experience for the Form I-140 petition.
How to Fill Out Form I-140: A Step-by-Step Guide for U.S. Employers
This section of the I-140 guide assists U.S. employers (petitioners) in accurately completing Form I-140 on behalf of a prospective foreign employee. Here’s what you need to do, step by step, as per USCIS instructions.
To avoid rejection, ensure all sections of the form are completed. USCIS will reject any petition missing the following fields in Part 1:
- Family name or company name,
- IRS identification number or social security number (not applicable for petitions under Alien Of Extraordinary Ability or National Interest Waiver),
- and mailing address.
You must also complete Part 2 (petition type) and Part 3 (information about the foreign worker for whom you are filing), including the beneficiary’s date of birth.
Before mailing your petition, it’s crucial to review USCIS’s tips for filing forms by mail page for specific instructions on ensuring your paper I-140 application is accepted.
Finally, remember that USCIS will reject any form that the petitioner or authorized signatory does not sign.
Step 1: Print the I-140 Form
USCIS makes all its forms available free of charge on their website. They recommend that petitioners use the latest version of Adobe Reader. When you complete the I-140 paper application, use black ink to type or print it legibly.
- If you cannot access the internet, you can request a paper copy of the form by calling the USCIS National Customer Service Center at 1-800-375-5283.
- For TTY service (for deaf or hard-of-hearing individuals), call 1-800-767-1833. You can request that a specific form be mailed to you by informing the USCIS representative of the required form.
Step 2: Complete Each Page with the Required Elements
Mark each additional page with your name, Alien Registration Number (A-Number) (if applicable), page number, part number, and item number to which it corresponds. Additionally, sign and date each separate sheet.
Step 3: Answering Questions Completely and Accurately
USCIS recommends you provide thorough and truthful answers to all questions. If a question doesn’t apply (e.g., “name of current spouse” for someone never married), enter “N/A” unless instructed otherwise. Moreover, when a numeric response is required and the answer is zero or none (e.g., “number of children”), enter “None” unless otherwise instructed.
Step 4: USCIS Online Account Number (Optional)
You must include your USCIS Online Account Number if you’ve previously filed an application or petition electronically using the USCIS online system. You can find this number by logging into your account and visiting your profile page.
Step 5: Industry and Occupation Codes (NAICS and SOC)
The NAICS code identifies your company’s industry. Find the North American Industry Classification System code on the Department of Commerce site. Enter the six-digit code, left to right, in the provided boxes. If your code has fewer than six digits, add leading zeros to fill the remaining spaces.
The SOC code identifies the specific occupation of the prospective employee. See the Standard Occupational Classification (SOC) System code from the Bureau of Labor Statistics. Like the NAICS code, enter the six-digit SOC code, left to right, with leading zeros for codes less than six digits.
Step 6: Petitioner Signature and Contact Information
In Part 8 of Form I-140, indicate whether you (the petitioner) read the petition yourself or used an interpreter. Additionally, select the box if someone assisted you in completing the form (preparer).
Remember that the petition must be signed and dated by either you (the petitioner) or an authorized signatory. If you use an authorized signatory, provide their full name, title, daytime phone number, mobile phone number (if appropriate), and email address (if applicable). USCIS will only accept a handwritten signature; stamped or typed names are unacceptable.
Step 7: Interpreter Information (if applicable)
If you use an interpreter to translate the instructions or questions, Part 9 requires the interpreter to provide their contact information, including name, business/organization name (if applicable), phone numbers, and email. The translator must also sign and date the petition.
Step 8: Preparer Information (if applicable)
Part 10 of the I-140 petition is for the person who completes the application on your behalf. If the same person acted as your interpreter and preparer, they should complete Parts 9 and 10.
If the individual who assisted you in completing Form I-140 represents a business or organization, be sure to include their complete business or organization name and address information in the designated section.
It’s important to remember that anyone who aided you in filling out the petition must personally sign and date the form. USCIS will not accept stamped or typed names as substitutes for a handwritten signature.
Furthermore, suppose you received assistance from an attorney or accredited immigration representative. In that case, they may also be required to submit a completed Form G-28 or Form G-28I along with your Form I-140 petition.
Step 9: Keeping a Copy of the I-140 Submission for Your Records
USCIS recommends printing or saving a copy of your completed Form I-140 for future reference.
Next Steps After I-140 Approval: Moving Toward Your Green Card
The I-140 approval is a significant milestone on your path to permanent residency in the United States. The following steps you take depend on your current location:
Adjustment of Status If You Live in the United States
If you currently legally reside in the U.S., you can apply for adjustment of status to become a lawful permanent resident. This process involves filing Form I-485 and undergoing medical examinations and background checks. USCIS will adjudicate your application and determine your eligibility for a Green Card.
Consular Processing If You Live Outside the United States
If you reside in another country, you will pursue permanent residency through consular processing. USCIS will transfer your approved I-140 petition to the National Visa Center (NVC). The NVC will then collect your application materials, including any required documents and fees, schedule an interview at the American embassy or consulate in your home country, and ultimately determine your visa issuance.
IMPORTANT! In both scenarios, you must wait for your “priority date” to become current before proceeding. The Visa Bulletin shows the availability of immigrant visa numbers by category and country of chargeability. You can check your visa category on the Visa Bulletin to determine when it’s your turn to apply for a Green Card.
Concurrent Filing (EB-1, EB-2, EB-3)
For specific employment-based immigrant visa categories (EB-1, EB-2, and EB-3), USCIS allows concurrent filing of Form I-485 with the I-140 petition. This means you don’t necessarily need a final decision on your I-140 before submitting your I-485 application. You can inquire with your employer or work with a specialized immigration law or consulting firm to determine if concurrent filing is an option for your situation.
I-140 Processing Time and Timeline: What to Expect
Once your employer submits your Form I-140 petition to USCIS, you can expect a receipt notice containing a unique tracking number within a few weeks. You can use this number to check the status of your case online through the USCIS case status webpage. Depending on your visa category, you can also check the official processing time for the I-140 petition.
If USCIS determines your application lacks the required documentation or information, they may issue an RFE. It will detail the missing elements and provide a deadline for submitting the additional materials.
IMPORTANT! Keeping open communication with your employer is crucial during this stage. They can inform you of any USCIS requests and promptly respond to avoid delays.
The Factors that Influence the I-140 Form Processing Time
Unlike some applications, there’s no guaranteed timeframe for an I-140 decision from USCIS. Several factors can impact the time needed for the petition to be reviewed and approved.
One key factor is the workload at the specific USCIS office handling your case, as offices with a high volume of applications may experience processing delays.
The complexity of your case itself can also play a role. If your petition involves unique circumstances or requires additional scrutiny, it might take longer to receive a decision.
Additionally, the overall number of applications USCIS is processing nationwide can impact timelines because periods with a surge in applications can lead to longer processing times for everyone.
Expediting the I-140 Petition with Premium Processing
While standard processing times for Form I-140 petitions can vary, some eligible applicants may be able to expedite the process by requesting premium processing from USCIS. This service comes with an additional fee of $2,805, but it can significantly reduce the I-140 waiting time.
For qualifying immigrant workers, premium processing allows the submission of Form I-907, the I-140 petition, and the additional fee. If USCIS approves the premium processing request, they must adjudicate the I-140 petition within a specific timeframe, typically ranging from 15 to 45 calendar days.
IMPORTANT! USCIS expanded the availability of I-140 premium processing to include previously filed and newly filed petitions. This includes petitions seeking E-13 classification for multinational executives and managers and E-21 classification for individuals with a national interest waiver (NIW).
For further details and to determine if your situation qualifies for expedited processing, you can visit the USCIS webpage regarding requesting premium processing.
How Much Does the I-140 Form Cost?
The filing fee for Form I-140 is currently set at $715.
IMPORTANT! A revised final rule was published in the Federal Register, adjusting the fees for most USCIS applications and petitions. These new fees will be implemented starting April 1, 2024. Ensure your employer uses the new fee structure when filing I-140 after April 1, 2024. The applications postmarked on or after this date with incorrect fees will be rejected because USCIS has no grace period for filing the new Immigrant Petition for Alien Workers edition, as it requires revision to reflect the updated fee amount.
How to Pay the I-140 Form Fee
USCIS offers your U.S. employer several ways to pay the I-140 filing fee:
- Money orders payable to the “U.S. Department of Homeland Security” are secure and accepted payment methods.
- Personal check or cashier’s check payable to “U.S. Department of Homeland Security.”
- Credit card: For those who prefer using a credit card, USCIS allows payment through Form G-1450, Authorization for Credit Card Transactions.
Please remember that USCIS filing fees are considered final and non-refundable. This applies to Form I-140, regardless of the petition’s outcome or if you decide to withdraw your application.
Moreover, USCIS requires that each filing fee be submitted separately. As they transition to electronic processing, they use multiple systems, and a single combined payment for multiple forms (like I-140 and I-485) may lead to the rejection of the entire application package.
Withdrawing an I-140 Petition: What You Need to Know
So far, we have talked a lot about submitting an I-140 petition, but what happens when the foreign worker is no longer interested in the U.S.-based job or position or no longer wants permanent residency? Sometimes, the petitioner (employer) decides they no longer wish to sponsor an international worker for a U.S. visa through Form I-140. This section of our guide details the withdrawal process for the I-140 petition.
How Can a U.S. Employer Withdraw the I-140 Petition?
Both you, the petitioner, or your authorized representative (Form G-28 representative) can submit a written withdrawal request to USCIS. This written request should include the following information:
- Clear withdrawal statement: A direct statement indicating your intent to withdraw the Form I-140 petition.
- Identifying information: The unique receipt number assigned to your Form I-140 petition.
- Petitioner details: Your full name, address, and phone number as the petitioner.
- Beneficiary information: The full name of the foreign worker you sponsor (beneficiary). You should also include the international worker’s Alien Registration Number if you know it.
- Authorized signature: Your signature as the petitioner or the signature of your authorized Form G-28 representative.
The timing of your I-150 withdrawal request can impact the petition’s validity for the foreign worker (beneficiary). If USCIS approves the I-140 petition and you wait at least 180 days (six months) before withdrawing it, it generally remains approved. In this case, the worker can still benefit from the approved I-140 petition for future endeavors.
If you submit a withdrawal request within 180 days of USCIS approving the I-140 petition, USCIS will consider the petition withdrawn and no longer valid.
How Can the Alien Worker Withdraw the I-140 Petition?
Unfortunately, based on USCIS regulations, you, as the beneficiary (the foreign worker), cannot withdraw the I-140 petition directly. The petition is sponsored by the employer (petitioner), and only the petitioner or their authorized representative can initiate a withdrawal request.
However, there are a couple of ways the foreign worker can influence the situation:
Communicate with the Employer
The most straightforward approach is to communicate with your U.S. employer openly. Explain your change of heart regarding the U.S. job opportunity and your desire no longer to pursue the green card process through their sponsorship. A transparent and honest conversation can encourage the employer to initiate the I-140 withdrawal process themselves.
Consider Your Options After the I-140 Form Approval (If Applicable)
If USCIS has already approved the I-140 petition, and more than 180 days have passed since the approval, the petition remains valid. In this scenario, even though you can’t directly withdraw it, the approved petition can still benefit future endeavors. You might be able to secure sponsorship from a new employer who can leverage the existing approved I-140 to expedite the green card process.
Can USCIS Deny the I-140 Petition?
While USCIS approval rates can vary, there’s always a chance your employer’s I-140 petition might be denied. These denials can stem from a variety of reasons, including issues with the job offer, your employment visa eligibility, insufficient documentation to prove your qualifications, or even errors or omissions within the petition itself (wrong I-140 form edition, issues with the fees, etc.).
What to Do if USCIS Denies the I-140 Petition
Receiving a denial notice for your I-140 petition can be frustrating. However, it’s essential to understand that options are available to move forward.
Review the Denial Notice
USCIS will provide your employer with a detailed explanation for their decision. If the U.S. company hiring you truly wants you to work for them, they should carefully analyze these reasons to identify the root cause of the denial.
Considering Refiling
Your U.S. employer has the option to refile a new I-140 petition. It can be a good approach if the denial stems from missing documentation, errors in the application, or USCIS oversight. The benefit of refiling is a relatively quick turnaround time, with USCIS typically processing these petitions within 4-8 months. Also, premium processing is often available for refilled petitions, potentially expediting the process.
Appealing the Denial
Your future U.S. employer can appeal the USCIS decision with the Administrative Appeals Office (AAO) by filing Form I-290B. This process requires acting swiftly, as they only have 30 days to submit the appeal after receiving the denial notice.
Appeals can take significantly longer than refiling, with processing times ranging from 12 to 36 months. Additionally, USCIS tends to scrutinize appeals more rigorously than refilled applications.
Rethink and Reassess
In some situations, refiling or appealing may not be the most effective strategy. Suppose the denial stemmed from issues with the job offer not meeting visa category requirements or your qualifications not aligning with the position. In that case, these underlying problems must be addressed before moving forward. A conversation between you and the employer might clarify many of the issues identified by USCIS.
Consulting an Immigration Attorney
Given the complexities of I-140 denials and the various pathways available, consulting with an immigration expert is highly recommended. An attorney can analyze your and your employer’s situations, advise you on the best course of action, and guide you through refiling, appealing, or exploring alternative approaches.
Remember, an I-140 denial is not necessarily the end of the road. You can identify the most suitable path toward achieving your green card goals by carefully reviewing the reasons for the denial, considering your options, and potentially seeking legal counsel.
Form I-140 Frequently Asked Questions
Do you still have questions or need clarifications regarding the I-140 form, its benefits, and its impact on your future U.S. residency status? See below what we have already told other clients!
When should I apply for my Green Card after my employer files Form I-140?
A USCIS-approved Form I-140 petition is the first step to permanent residency in the United States through employment sponsorship. This approval paves the way for you to pursue your green card in two ways:
- Employment-based immigrant visa application: With the I-140 approval, you can request an employment-based immigrant visa at a U.S. consulate or embassy in your home country.
- Adjustment of status (Form I-485): If you are already legally present in the U.S., you can leverage the I-140 approval to file Form I-485 for adjustment of status. This allows you to transition from your non-immigrant visa to a green card holder without leaving the United States.
The ability to file Form I-485 concurrently (at the same time) as your employer submits your I-140 petition depends on your nationality. The Department of State publishes the monthly Visa Bulletin that details the availability of immigrant visa numbers by category and country. As mentioned in this guide, by checking it regularly, you can determine if your specific situation allows for concurrent filing of both forms.
Can I apply for my family members' green cards after the I-140 petition is approved?
The good news is that your immediate family doesn’t need to piggyback on your employment-based immigration path. Here’s how your family can join you:
- Separate green card applications: Spouses and unmarried children under 21 can apply for their green cards independently through Form I-485. It allows them to obtain permanent resident status without going through the I-140 process themselves.
- Additional paperwork submissions: While the application process is separate, additional paperwork for your family members will be required. They must request an Employment Authorization Document to work in the U.S. legally. They may also need Advanced Parole if they plan to travel outside the country during the application process.
It’s essential to be aware that, in rare instances, USCIS might approve your I-140 petition but deny your family members’ I-485 applications. It is uncommon, but it’s a possibility to keep in mind.
Can I change jobs while waiting for my green card (Petition I-140 Approval)?
Whether you can change jobs depends on two key factors:
- Type of sponsorship: Are you sponsored by an employer (employer-sponsored), or are you petitioning for yourself (self-petitioner)?
- I-140 approval status: Has your initial I-140 petition requesting immigrant worker status been approved by USCIS, and if so, for how long?
Here are detailed explanations for each scenario.
- Before I-140 approval: If you have a new job offer and your original I-140 petition with your current employer hasn’t been approved by USCIS, you’ll need to restart the entire green card petition process with your new employer. The new employer offering you the job must file a new I-140 petition on your behalf.
- After 180 days of I-140 approval, things get more interesting if your original I-140 petition is approved and valid for at least 180 days (six months). In this case, your original employer cannot revoke the petition, and you’ve already established a priority date for your green card category. This priority date is crucial for determining how long you might wait before receiving your green card.
IMPORTANT! With an approved I-140 (over 180 days old), you can still pursue your green card even if you take a new job offer at a different U.S. company. However, to leverage your existing I-140 approval, your new job offer needs to be in a similar occupational field (think similar skills and duties) to the original job offer in your approved I-140 petition.
If you change employers with a pending I-485 application (green card application) based on an employer-sponsored I-140, it’s highly recommended to consult with an immigration law or consulting firm. They can guide you through requesting a “port” under AC21 provisions. This ensures a smooth transition to your new job while your green card application continues to be processed.
If you are petitioning for yourself (EB-1, Outstanding Researcher, Professor, or Multinational Manager categories), your ability to change jobs is more flexible. As long as your new job offer is still related to your original field of expertise (the field that qualified you to file the I-140 petition first), you can generally change jobs freely. At the same time, you wait for your I-140 approval (or even after your I-140 approval while waiting for your green card through Form I-485).
IMPORTANT! Even for self-petitioners, it’s crucial to maintain a job related to your qualifying field. If USCIS issues a Request for Evidence or interview request during your I-485 processing and it becomes clear that you’re no longer working in the field that qualified you for the I-140, it could lead to a denial of your green card application.
Another company recently acquired my company. The previous employer had already filed and received approval for my I-140 petition. Can the new company still use this approved I-140 to hire and help me get my green card?
There’s a chance! In some situations, the new company, acting as your successor employer, can use your already approved I-140 petition.
Here’s what you need to know:
- Successor-in-Interest (SII): The key lies in establishing a successor-in-interest connection between the two companies. The new employer must demonstrate that they’ve assumed the previous company’s essential business operations and obligations.
- Approved I-140 and priority date: If your original I-140 petition was approved and a visa priority date was established, there’s a good chance the new employer can leverage that date in your green card application. This can significantly reduce your wait time compared to starting the entire process over again.
It is vital to consult with an immigration lawyer if this situation applies to you. They can assess the SII connection and guide you using the existing I-140 approval with your new employer.
I lost my job after the i-140 approval. Can I still get my green card?
It depends on how far along your green card application (adjustment of status through Form I-485) is in the process:
- Over 180 days pending: If your I-485 application has been pending for more than 180 days since filing, you might still be eligible for your green card even if you lose your job. Your new job offer needs to be in a similar field to the original position in your approved I-140 petition because USCIS will be looking for consistency between your approved petition and your current employment situation.
- Less than 180 days pending: Things get trickier if your green card application is less than 180 days old. In this scenario, your new employer might need to start the process again. This would involve filing a new PERM Labor Certification application and a new I-140 petition on your behalf.
Start Your I-140 Form Petition Today!
If you receive a job offer from a U.S. company encouraging you to immigrate to the United States, the I-140 petition is a crucial first hurdle in the employment-based green card process. Our experienced immigration attorneys and consultants at ImmigrationDirect can guide you and your employer through the intricacies of Form I-140. With our help, the U.S. hiring company can increase their chances of USCIS approval, paving the way for them to get top talent and you to obtain your green card and a future in the U.S. Don’t hesitate to contact us today for a consultation!
