Form I-140

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Form I-140, Immigrant Petition for Alien Worker, 2016 Form I-140 (2015 edition).pdf
Form I-140, Immigrant Petition for Alien Worker, 2016

Form I-140, Immigrant Petition for Alien Worker is a form submitted to the United States Citizenship and Immigration Service (USCIS) by a prospective employer to petition an alien to work in the US on a permanent basis. This is done in the case when the worker is deemed extraordinary in some sense or when qualified workers do not exist in the US. [1] The employer who files is called the petitioner, and the alien employee is called the beneficiary; these two can coincide in the case of a self-petitioner. The form is 6 pages long with a separate 10-page instructions document as of 2016. It is one of the USCIS immigration forms.

Contents

Reasons for filing Form I-140

Form I-140 is required for EB categories EB-1, EB-2, and EB-3. For EB-4 and EB-5, Forms I-360 and I-526 are used, respectively. These categories were introduced as part of the Immigration Act of 1990.

The following is a list of all of the reasons (also known as petition types) for filing Form I-140. [1] [2]

Petition typeVisaLabor certification-based?
An alien of extraordinary abilityEB-1No
An outstanding professor or researcherEB-1No
A multinational executive or managerEB-1No
A member of the professions holding an advanced degree or bachelor's degree with minimum of 5 years work experience post-bachelor's degree or an alien of exceptional ability (who is not seeking a National Interest Waiver)EB-2Yes
A professional (at a minimum, possessing a bachelor's degree or a foreign degree equivalent to a U.S. bachelor's degree)EB-3Yes
A skilled worker (requiring at least 2 years of specialized training or experience)EB-3Yes
Any other worker (requiring less than 2 years of training or experience)EB-3Yes
An alien applying for a National Interest Waiver (who is a member of the professions holding an advanced degree or an alien of exceptional ability)EB-2No

Filing details

Initial evidence

The Form I-140 petition must be accompanied by what is termed "initial evidence". This evidence depends on the type of employee being sponsored, but for instance (in some cases) includes an award given to the employee or publication by the employee that certifies they are someone of extraordinary ability. In many cases (see table above), part of the initial evidence is a Permanent Labor Certification, which establishes, among other things, that there are insufficient workers in the US to fill the position the alien employee plans to take. [1] In cases where a labor certification is required, the petition is said to be labor certification-based.

In labor certification-based petitions, a Permanent Labor Certification must be filed and approved by the US Department of Labor before Form I-140 can be submitted. It is possible to establish a successor-in-interest relationship between the successor employer and predecessor employer, in which case a predecessor's labor certification can be used.

General evidence

Additional evidence that must be provided includes the employer's financial data, proof of the employee's education and work experience, as well as evidence that the employer can pay the proffered wage to the employee. [3]

The alien can in addition self-petition in the cases of EB1-A Alien of Extraordinary Ability or EB-2 National Interest Waiver.[ citation needed ]

The form must be signed to be valid. [1]

Forms submitted alongside

Form I-907, Request for Premium Processing Service, is required if the petitioner is requesting Premium Processing. [1]

Form I-140 may be filed concurrently with Form I-485, Application to Register Permanent Residence or Adjust Status.[ citation needed ]

Filing modalities

Form I-140 can be filed by paper or electronically. If the form is filed electronically, it will be sent to an appropriate service center.[ citation needed ]

Addresses

The filing address for Form I-140 depends on whether Form I-140 is being filed on its own or concurrently with Form I-485. The filing address can also differ by the state the beneficiary will work in for Premium Processing. [4]

Filing fees

The fee for filing Form I-140 is $715, and must be payable in US currency to the US Department of Homeland Security. [1] There is also a $2,800 fee for Premium Processing (next section).

However, this fee does not include:

Premium Processing: Form I-907

The USCIS offers a Premium Processing Service at an additional fee of $2,800 for Form I-140 petitions. Premium Processing is only available for this form and for Form I-129 (non-immigrant worker). The Premium Processing Service promises an initial review from the USCIS within 15 calendar days of receipt of the form, after which time it may approve, deny, or issue a Request For Evidence or Notice of Intent to Deny. [8] USCIS will refund the Premium Processing Service fee if processing takes longer than 15 days. If the fee is refunded, the relating case will continue to receive expedited processing. [8] The time begins from the receipt of Form I-907 and the associated fee.

The Premium Processing Service was introduced in 2001 for Form I-129 [9] and extended to Form I-140 in 2006. [10]

Premium Processing does not guarantee a final adjudication; it only provides a time limit for initial review of the petition. In other words, the 15 calendar day guarantee is only for the initial review of the petition, which may result in approval, denial, or the issuing of a Request For Evidence or Notice of Intent to Deny.

For immigrant visa allocation, the Form I-140 petition must be approved and the priority date assigned to that petition must be before the cutoff date (which depends on the country of chargeability and the visa category). Since the cutoff date and the processing time for Form I-140 petitions are independent, the wait time for Form I-140 to be processed is the later of the visa number availability time (the cutoff date) and the Form I-140 processing time. Therefore, Premium Processing can expedite the overall process of obtaining lawful permanent resident status when the Form I-140 processing time is longer than the visa number availability time. In other words, if there is no visa number availability wait time, either because the category is uncapped or the caps are nowhere near being met, then Premium Processing is advantageous. On the other hand, for a visa category with a country of chargeability where the current cutoff date is far in the past (i.e. there is a long queue), Premium Processing would not expedite the overall process because the cutoff date overwhelms even the standard processing time.[ citation needed ]

It is possible to apply for Premium Processing on an already-submitted application. In this case, the clock for Premium Processing begins when the Premium Processing is requested.

Benefits of having an approved Form I-140 petition

Q 67 and Section 106 of the American Competitiveness in the 21st Century Act (AC21) includes special provisions in case of lengthy adjudications. In particular, it allows extensions by one year at a time of the H-1B status for people with long-pending Form I-140 petitions (pending for at least 365 days). Here, "pending" includes an appeal that is pending. It also allows people with Form I-485 petitions that have been pending for more than 180 days to switch jobs without invalidating the underlying Form I-140 and labor certification. However, there is an ambiguity in cases where an extension is obtained but subsequently the Form I-140 petition is denied.

Under one of the provisions of the LIFE Act, the USCIS would overlook unlawful entry and unlawful presence when considering some Adjustment of Status applications for people whose Form I-140 had been filed by April 30, 2001 (with a number of additional caveats). [11]

Statistics

Rate of approvals

The approval rate for aliens of extraordinary ability has ranged from 47% to 62% during the years 2005–2010. For outstanding professors or researchers, this has ranged from 90% to 95% during the same years. [12]

Processing times

USCIS processes Form I-140 on a first-come, first-served basis, so at any given time, the date received for the forms that have just finished processing provides a good estimate of processing time. USCIS breaks down Form I-140 into eight categories and reports processing times separately for each: [13]

The processing time is on average about four months. [14]

There are separate processing times reported for the appeals processing. As of February 1, 2016, the processing times for administrative appeals for all categories of Form I-140 is 6 months or less. [15]

Adverse decisions

Initial response

The initial response from the USCIS to a Form I-140 is one of these four:

In the case of a RFE or NOID, the petitioner's response will be taken into account by the USCIS when deciding whether to approve or deny the petition.

Standalone filing: revocation of petition and Notice of Intent to Revoke

Based on new evidence suggesting that the original petition was fraudulent, the USCIS may issue a revocation of petition (i.e., revoke the petition entirely) or send the petitioner a Notice of Intent to Revoke, to which the petitioner may respond with additional evidence or challenge the reasons. The typical impetus for the USCIS to reconsider an approved petition is when a United States consular officer evaluating the beneficiary's visa application based on the petition encounters evidence suggesting that the petition was fraudulent. If the consular office finds such evidence, he or she returns the petition to USCIS along with the reasons the petition appears fraudulent, and issues a Section 221(g) quasi-refusal to the applicant (note that this is relevant to cases 2 and 3, and not to case 1 where the beneficiary is already in the United States). [17] The following are worth noting:

Re-application and appeals process

It is possible to reapply for a Form I-140 petition if the original petition results in denial or revocation. When reapplying, all previously submitted evidence must be resubmitted, and filing fee must be paid again. In addition, the receipt number from the previous I-140 petition must be given.

If there is additional evidence available to the petitioner that could lead to the original petition being approvable, it is possible to file a motion to reopen or reconsider the petition. For this, Form I-290B, Notice of Appeal or Motion, must be filed within 30 days of the denial (15 days in case of revocation). [18]

Third, it is possible to appeal the decision, in which case Form I-290B, Notice of Appeal or Motion, must be filed within 30 days of the denial (15 days in case of revocation) for processing by the USCIS Administrative Appeals Office (AAO). Note that although the form submitted is the same for appeals or motions, the way the form is filled makes clear whether the form is being used for an appeal or motion. [18] In case of an appeal it is not necessary to submit new evidence, since the claim is that the original denial or revocation was incorrect in light of the evidence available at the time. The AAO has a processing time goal of 6 months or less for appeals, but current processing times are not reported. [19] Appeals have historically taken up to 35 months to be adjudicated; for this reason law resources often recommend reapplying.

Finally, if the AAO returns an adverse decision, it is also possible to file a motion to reconsider with the AAO itself. [18]

The AAO is the final point of appeal within USCIS. Beyond this, the decision can be appealed within the federal judicial system. [20] An example of an appeal was the case of Kazarian v. USCIS (2010).

Relation with overall immigrant visa process

The filing of Form I-140 is one step of the overall process to become a lawful permanent resident. The entire process typically takes several years. [21]

  1. Labor certification (also called the PERM process). [22] If the petition is labor certification-based, the employer must legally prove that it has a need to hire an alien for a specific position and that there is no minimally qualified U.S. citizen or LPR available to fill that position, hence the reason for hiring the alien. This is currently done through an electronic system known as PERM. [23] This step is processed by the United States Department of Labor (DOL). The labor certification is valid for 6 months from the time it is approved.
  2. Immigrant petition. The employer applies on the alien's behalf to obtain a visa number. The application is Form I-140, the topic of this page. Currently, this process takes up to 6 months.
  3. Immigrant visa availability. When the immigrant petition is approved by the USCIS, the petition is forwarded to the NVC for visa allocation. Currently this step centers around the priority date concept.
  4. Immigrant visa adjudication. When the National Visa Center (NVC) determines that an immigrant visa is available, the case can be adjudicated. If the alien is already in the US, that alien has a choice to finalize the green card process via adjustment of status in the US, or via consular processing abroad. If the alien beneficiary is outside of the US, they can only apply for an immigrant visa at the US consulate. The USCIS does not allow an alien to pursue consular processing and adjustment of status (AOS) simultaneously. Prior to filing the form I-485 (Adjustment of Status) it is required that the applicant have a medical examination performed by a USCIS-approved civil surgeon. The examination includes a blood test and specific immunizations, unless the applicant provides proof that the required immunizations were already done elsewhere. The civil surgeon hands the applicant a sealed envelope containing a completed form I-693, which must be included unopened with the I-485 application. [24] (The cited reference also states that the February 25, 2010 edition of the Form I-693 reflects that an individual should no longer be tested for HIV infection.)
    • Adjustment of status (AOS). After the alien has a labor certification and has been provisionally allocated a visa number, the final step is to change his or her status to permanent residency. Adjustment of status is submitted to USCIS via form I-485, Application to Register Permanent Residence or Adjust Status. If an immigrant visa number is available, the USCIS will allow "concurrent filing": it will accept forms I-140 and I-485 submitted in the same package or will accept form I-485 even before the approval of the I-140.
    • Consular processing. This is an alternative to AOS, but still requires the immigrant visa petition to be completed. The Form I-485 is not used. In the past (pre-2005), this process was somewhat faster than applying for AOS, so was sometimes used to circumvent long backlogs (of over two years in some cases). However, due to recent efficiency improvements by the USCIS, it is not clear whether applying via consular processing is faster than the regular AOS process. Consular processing is also thought to be riskier since there is no or very little recourse for appeal if the officer denies the application.

Of the USCIS immigration forms, the following are most closely related to Form I-140:

Related Research Articles

<span class="mw-page-title-main">Green card</span> Lawful permanent residency in the United States

A green card, known officially as a permanent resident card, is an identity document which shows that a person has permanent residency in the United States. Green card holders are formally known as lawful permanent residents (LPRs). As of 2023, there are an estimated 12.7 million green card holders, of whom 9 million are eligible to become United States citizens. Approximately 18,700 of them serve in the U.S. Armed Forces.

An H-2A visa allows a foreign national worker into the United States for temporary agricultural work. There are several requirements of the employer in regard to this visa. The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring non-immigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. In 2015 there were approximately 140,000 total temporary agricultural workers under this visa program. Terms of work can be as short as a month or two or as long as 10 months in most cases, although there are some special procedures that allow workers to stay longer than 10 months. All of these workers are covered by U.S. wage laws, workers' compensation and other standards; additionally, temporary workers and their employers are subject to the employer and/or individual mandates under the Affordable Care Act. Because of concern that guest workers might be unfairly exploited, the U.S. Department of Labor Wage and Hour Division is especially vigilant in auditing and inspecting H-2A employers. H-2A employers are the only group of employers who are required to pay inbound and outbound transportation, free housing, and provide meals for their workers. H-2A agricultural employers are among the most heavily regulated and monitored employers in the United States. Unlike other guest worker programs, there is no cap on the number of H-2A visas allocated each year.

A Request for Evidence (RFE) is a request issued by the United States Citizenship and Immigration Services to petitioners for residency, citizenship, family visas, and employment visas. Examples of petitions for which a RFE may be issued are Form I-129, Form I-140, and Form I-130.

The EB-1 visa is a preference category for United States employment-based permanent residency. It is intended for "priority workers". Those are foreign nationals who either have "extraordinary abilities", or are "outstanding professors or researchers", and also includes "some executives and managers of foreign companies who are transferred to the US". It allows them to remain permanently in the US.

EB-2 is an immigrant visa preference category for United States employment-based permanent residency, created by the Immigration Act of 1990. The category includes "members of the professions holding advanced degrees or their equivalent", and "individuals who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States". Applicants must generally have an approved Permanent Labor Certification, a job offer, and their employer must have filed an Immigrant Petition for Alien Worker with the USCIS.

Alien of extraordinary ability is an alien classification by United States Citizenship and Immigration Services. The United States may grant a priority visa to an alien who is able to demonstrate "extraordinary ability in the sciences, arts, education, business, or athletics" or through some other extraordinary career achievements.

EB-3 is a visa preference category for United States employment-based permanent residency. It is intended for "skilled workers", "professionals", and "other workers". Those are prospective immigrants who don't qualify for the EB-1 or EB-2 preferences. The EB-3 requirements are less stringent, but the backlog may be longer. Unlike persons with extraordinary abilities in the EB-1 category, EB-3 applicants require a sponsoring employer. There is no "self-petition" category.

The American Competitiveness in the 21st Century Act (AC21) was an act passed by the government of the United States in October 2000, pertaining to immigration to the United States. It was a complement to the American Competitiveness and Workforce Improvement Act that had been passed in 1998. The focus of AC21 was to change rules related to portability and caps for the H-1B visa to increase the effective number of visas available and make it easier for workers on those visas to switch jobs. Although the language of the Act references the Immigration and Naturalization Service (INS), the INS would soon be restructured and the functions of the INS referenced in AC21 would be handled by United States Citizenship and Immigration Services.

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The United States Citizenship and Immigration Services (USCIS) issues a number of forms for people to submit to them relating to immigrant and non-immigrant visa statuses. These forms begin with the letter "I". None of the forms directly grants a United States visa, but approval of these forms may provide authorization for staying or extending one's stay in the United States as well as authorization for work. Some United States visas require an associated approved USCIS immigration form to be submitted as part of the application.

<span class="mw-page-title-main">Form I-130</span> American immigration document

Form I-130, Petition for Alien Relative is a form submitted to the United States Citizenship and Immigration Services by a United States citizen or Lawful Permanent Resident petitioning for an immediate or close relative intending to immigrate to the United States. It is one of numerous USCIS immigration forms. As with all USCIS petitions, the person who submits the petition is called the petitioner and the relative on whose behalf the petition is made is called the beneficiary. The USCIS officer who evaluates the petition is called the adjudicator.

A Notice of Intent to Deny (NOID) is a notice issued by the United States Citizenship and Immigration Services to petitioners for residency, citizenship, family visas, and employment visas. Examples of petitions for which a NOID may be issued are Form I-129, Form I-140, and Form I-130.

A Notice of Intent to Revoke (NOIR) is a communication sent by the United States Citizenship and Immigration Services to a petitioner about a previously approved petition, telling him or her that the USCIS intends to revoke the petition, along with the reasons for revocation, and giving the petitioner a fixed amount of time to respond. NOIRs may be issued for immigrant visa petitions and for non-immigrant visa petitions.

The National Visa Center (NVC) is a center that is part of the U.S. Department of State that plays the role of holding United States immigrant visa petitions approved by the United States Citizenship and Immigration Services until an immigrant visa number becomes available for the petition, at which point it arranges for the visa applicant(s) to take the visa interview at a consulate abroad. It is located in Portsmouth, New Hampshire. It was established on July 26, 1994, on the site of an Air Force base that was closed down by The Pentagon.

The Legal Immigration Family Equity Act of 2000, also known as the LIFE Act and as the Legal Immigration and Family Equity Act, along with its Amendments, made some changes to laws surrounding immigration for family members of United States citizens and Lawful Permanent Residents, as well as people eligible for employment-based immigrant visas, in the direction of making it easier for family members and immigrant workers to move to and adjust status within the United States. It was passed on December 21, 2000, as title XI of Pub. L.Tooltip Public Law  106–553 (text)(PDF).

Special Immigrant Juvenile Status (SIJS) is a special way for minors currently in the United States to adjust status to that of Lawful Permanent Resident despite unauthorized entry or unlawful presence in the United States, that might usually make them inadmissible to the United States and create bars to Adjustment of Status. The key criterion for SIJS is abuse, neglect, or abandonment by one or both parents.

A National Interest Waiver is an exemption from the labor certification process and job offer requirement for advanced degree/exceptional ability workers applying for an EB-2 Visa for Immigration into the United States.

The R-1 visa is a non-immigrant visa which allows travel to the United States for service as a minister or other religious occupation. Between October 2019 and September 2020, there were 2,399 R visas issued.

The Administrative Appeals Office, full name USCIS Administrative Appeals Office, and also known as the AAO and USCIS AAO, is an office within United States Citizenship and Immigration Services (USCIS) that can be used by petitioners to appeal adverse USCIS decisions made on their petitions. It is located in Washington, D.C., and all its in-person functions happen only in Washington, D.C.

Kazarian v. USCIS refers to a case decided by the United States Court of Appeals for the Ninth Circuit on March 4, 2010, pertaining to a decision by United States Citizenship and Immigration Services (USCIS) on a Form I-140 EB-1 application. The decision led the USCIS to issue a policy memo to change its adjudication process for EB-1 and EB-2 petitions to a "two-step review" where the first step would focus on counting pieces of evidence and the second step would be a final merits determination. The case has been cited by USCIS as well as by petitioners in hundreds of Form I-140 petitions and appeals since 2010.

References

  1. 1 2 3 4 5 6 "Instructions for Petition for Alien Worker" (PDF). Department of Homeland Security. Archived from the original (PDF) on May 15, 2016. Retrieved February 14, 2016.
  2. ↑ "Immigrant Petition for Alien Worker" (PDF). Department of Homeland Security. Archived from the original (PDF) on April 7, 2016. Retrieved February 20, 2016.
  3. ↑ "22.2 Employment-based Immigrant Visa Petitions (Form I-140)". Adjudicator's Field Manual. U.S. Citizenship & Immigration Services. Retrieved 6 March 2018.
  4. ↑ "Direct Filing Addresses for Form I-140, Immigrant Petition for Alien Worker". USCIS. Retrieved February 20, 2016.
  5. ↑ "I-485, Application to Register Permanent Residence or Adjust Status". United States Citizenship and Immigration Services . Retrieved May 27, 2015.
  6. ↑ "Fees for Visa Services". United States Citizenship and Immigration Services . Retrieved May 27, 2015.
  7. ↑ "USCIS Immigrant Fee". United States Citizenship and Immigration Services . Retrieved May 27, 2015.
  8. 1 2 "How Do I Use the Premium Processing Service?". United States Citizenship and Immigration Services . Retrieved April 4, 2015.
  9. ↑ Endelman, Gary (June 12, 2001). "Be Careful of What You Wish For: The Hidden Meaning of Premium Processing Fees". Immigration Daily. Retrieved April 5, 2015.
  10. ↑ "How Do I Use the Premium Processing Service?". USCIS. U.S. Citizenship & Immigration Services. Retrieved 6 March 2018.
  11. ↑ "Legal Immigration Family Equity Act" (PDF). United States Citizenship and Immigration Services. December 21, 2000. Retrieved February 9, 2016.
  12. ↑ "Approval and Denial Statistics for I-140, Immigrant Petition for Alien Workers". USCIS. 28 February 2011. Retrieved February 20, 2016.
  13. ↑ "USCIS Processing Time Information". United States Citizenship and Immigration Services . Retrieved March 4, 2016.
  14. ↑ "USCIS Processing Time Information". USCIS. U.S. Citizenship & Immigration Services. Retrieved 6 March 2018.
  15. ↑ "AAO Processing Times". USCIS. Retrieved March 3, 2016.
  16. ↑ "8 C.F.R. 103.2(b)(8) - Submission and adjudication of benefit requests". USCIS. U.S. Citizenship & Immigraiton Services. Retrieved 6 March 2018.
  17. ↑ "Immigrant Visa Petitions Returned by the State Department Consular Offices". United States Citizenship and Immigration Services. 15 July 2011. Retrieved January 16, 2016.
  18. 1 2 3 "Instructions for Form I-290B" (PDF). United States Citizenship and Immigration Services . Retrieved December 25, 2016.
  19. ↑ "AAO Processing Times". United States Citizenship and Immigration Services . Retrieved December 25, 2016.
  20. ↑ "Precedent Decisions". United States Citizenship and Immigration Services. Archived from the original on January 28, 2018. Retrieved December 25, 2016.
  21. ↑ "Adjustment of Status". Faculty & Scholar Immigration Services. University of Hawaii at Manoa. Retrieved 6 March 2018.
  22. ↑ "Permanent Labor Certification". United States Department of Labor. 21 December 2017. Retrieved 6 March 2018.
  23. ↑ "Permanent Labor Certification". Employment and Training Administration, US Department of Labor. Retrieved 2006-12-31.
  24. ↑ Medical Examination of Aliens Seeking Adjustment of Status Archived 2007-06-30 at the Wayback Machine , form I-693 description, USCIS Website, retrieved December 3, 2007
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