Frequently Asked Questions about Form I-140 (Immigrant Petition for Alien Worker) and Concurrent Filing of I-140 and I-48
What is Form I-140?
Form I-140 (Immigrant Petition for Alien Worker) is for petitioning U.S. Citizenship and Immigration Services (USCIS) to classify a non-resident as eligible for an employment-based immigrant visa. For EB-1A (Alien of Extraordinary Ability) and EB-2 (National Interest Waiver), the non-resident can self-petition. The non-resident needs an employer to file the I-140 petition for other employment-based immigration categories.
How should I file I-140?
The I-140 can be filed by mail or electronically, but supporting documents must be sent to a service center. When e-filing Form I-140, it is automatically sent to the correct Service Center, and you are sent a receipt showing the service center location. It is important to look at your receipt and make note of the location. Submission of supporting evidence and all other communication must be sent to the location shown on your e-filing receipt.
Can I request premium processing for the I-140?
The answer is yes. If an applicant wants premium processing for Form I-140, they must file Form I-907 (Request for Premium Processing Service). Send Form I-907 and I-140 jointly to the address on the Form I-907 instructions. Requests for premium processing should NOT be sent to a lockbox facility.
Can a petitioner request premium processing when the I-140 is pending?
The answer is yes. If an applicant has already filed Form I-140 and now wishes to request premium processing, they must file Form I-907 with the service center where the I-140 is pending. For further information, see Form I-907 filing instructions. Requests for premium processing should NOT be sent to a lockbox facility. Form I-797C (Notice of Action), which proves Form I-140 was accepted, or, if applicable, a copy of the transfer notice showing the location on Form I-140, must be included with the Request for Premium Processing. To guarantee that Form I-907 is paired with the correct Form I-140, the applicant should fully answer questions 1-5 in Part 2 of Form I-907. Form I-907 will be rejected if the information is not given.
What Is the Filing Fee for I-140?
For Form I-140, the filing fee is $580.
What will guarantee that my Form I-140 will not be rejected by USCIS?
To prevent petition rejection or delay of final decision, submit your Form I-140 with well-organized supporting evidence and correct information.
Tips to make sure that the Form I-140 petition is accepted are:
Even though older versions are sometimes accepted, use the latest version of the form.
Be sure to carefully follow the instructions regarding where to file your Form I-140.
One visa preference category should be selected in Part 2 of the I-140. The petition will be rejected by USCIS if more than one category is selected or if Part 2 is left blank.
Provide answers in all of the “answer” and “check” boxes and respond to all questions. If a question does not apply, please write “n/a” or “none” in the answer box.
Use black ink only to type or print information. Entries should not be “highlighted“ or “background shaded“.
Make sure that the petitioner (yourself or the sponsoring employer) signs Form I-140.
The correct specified fee from the instructions should be included. When you file the application with other connected documents, affix the fee to the petition with a staple or paper clip, and specify the petitioner’s name on the payment form (i.e., in the memo field).
Only submit one check for each application. ALL forms will be rejected if a single check is used to pay for multiple applications or petitions and the documents are incorrectly filed.
Present Form G-28 (Notice of Entry of Appearance as Attorney or Representative), if applicable, with both the applicant’s and the representative’s original.
For electronically-filed petitions, supporting evidence should be sent to the address listed on the e-filing directions. Electronically-filed I-140 supporting evidence should not be sent with other paper-filed petitions or applications.
What if an incorrect visa category is selected in Part 2 of Form I-140?
When USCIS receives Form I-140, it will send a Form I-797 Receipt Notice to the applicant or the Form G-28 representative. The visa category listed on Part 2 of Form I-140 will be indicated on the receipt notice. If the visa category is incorrect and a verdict has not been determined for the petition, then the applicant should immediately ask for a change in visa classification through the USCIS National Customer Service Center [1-800-375-5283, 1-800-767-1833 (TTY)].
The determination of whether to change the visa classification will be determined by USCIS based on the total record. If a petition has already been decided, a request for change in visa category cannot be approved.
Can the applicant request deliberation of multiple visa categories?
The answer is yes. If an applicant wants to classify the non-resident under multiple visa categories, he/she must file a separate Form I-140, along with the required supporting evidence and fee for each requested visa category.
What steps should be taken to file a Form I-140 that requires a DOL-approved labor certification?
The labor certification must be presented with Form I-140 during the 180-day validity timeframe noted by DOL on each page of the labor certification. Petitions will be rejected if not presented with a valid labor certification.
How can I ensure that my Form I-140 petition is accepted for processing even though it requires a DOL-approved labor certification?
The following are tips to make sure that the Form I-140 requiring a DOL-approved labor certification is accepted for processing.
Order for I-140 packet: 1) Form G-28, if any; 2) Form I-140; 3) Original labor certification; 4) Other supporting evidence.
Petitions with labor certification will be accepted on the next business day if the ending date of the labor certification’s validity period expires on a legal holiday, Saturday, Sunday. Applications filed with expired labor certifications that were filed after the next business day past the expiration date will be rejected.
DOL-approved labor certifications that are e-filed with DOL must be signed prior to submission with the I-140 petition by the non-resident, the agent/representative, and the employer. If the labor certifications are unsigned, Form I-140 applications will be rejected. The petitioner will be sent a Request for Information (RFE) requesting the required signatures if an I-140 is mistakenly accepted with an unsigned labor certification.
If a duplicate labor certification is needed, place a brightly colored sheet of paper directly under Form I-140 requesting the duplicate in large bold print.
If the application being filed is a revised application and the original labor certification has already been presented with Form I-140, put a brightly colored sheet of paper directly under the application that states in large bold print that it is a revised application and that the labor certification has already been submitted. Also submit the receipt number of the previously filed application, if available.
Is there a specific way to organize the evidence with the I-140?
The various categories of supporting evidence submitted should be grouped according to the area of eligibility being established.
An applicant should follow the tips below on organizing the evidence:
When the petition is filed, submit all required evidence and documentation. Form I-140 petitions can be denied without issuing a Request For Evidence (RFE) in cases where the required documentation described in the regulations and instructions is not provided.
Submit clear legible copies when providing photocopies of evidence. (Note: Original DOL-approved labor certifications signed by the non-resident, petitioner, and representative, if any, must be submitted if required by the visa category.)
All foreign language evidence must be submitted with an English translation. The translation must be certified by a competent translator and must state in writing that “the translation is true and accurate to the best of the translator’s abilities”. The English translation should be stapled to the foreign language document.
If an earlier priority date based on a prior-approved Form I-140 is justified, provide a note stating this, along with a copy of the Form I-797 approval notice for the previous petition. (See 8 C.F.R. 204.5(e))
Highlight the non-resident’s name in the relevant articles if documenting citations of the non-resident’s work or the non-resident’s publications. The non-resident is not required to send a full copy of a thesis, research paper, or dissertation written by the non-resident, or one in which the non-resident’s work has been cited. Only provide the title page, the “works cited” or bibliography, and the page(s) that cite the non-resident’s work.
For evidence documents, place a tab and label on the bottom of the first page of each document. For petitions supported by a large amount of evidence, submit a list of the evidence documents and the eligibility conditions that each exhibit is submitted to establish. If an exhibit is being submitted to meet multiple eligibility conditions, then it should be identified as such in the exhibit list.
What eligibility criteria should be identified in the case of EB-1A Alien of Extraordinary Ability on Form I-140?
In the case of Alien of Extraordinary Ability, select which of the ten regulatory conditions the non-resident is attempting to fulfill and the related evidence for each individual condition. Additionally, provide a statement and evidence that the non-resident is coming to the U.S. to continue employment in his/her area of prolonged national or international expertise.
What eligibility criteria should be identified in the case of EB-1B Outstanding Researcher or Professor Petitions on Form I-140?
The I-140 petition for Outstanding Researcher or Professor should include the following:
The application should identify which of the six regulatory conditions the non-resident is attempting to fulfill and the relevant documentation for each individual condition.
Submit documentation that the non-resident has a minimum of three years of experience in research and/or teaching in the academic area.
Provide a copy of the applicant’s actual job offer issued to the non-resident. This contract or letter must list the title, conditions, and terms of the position offered.
Send evidence as outlined above for each job if the non-resident has changed jobs since he/she was originally hired.
What eligibility conditions should be identified in the case of EB-1C Multinational Manager or Executive on Form I-140?
The I-140 application for Multinational Manager or Executive should include the following documents:
Present documentation and a cover letter that defines the position offered in the U.S., the name of the foreign employer, the position held abroad, the years of employment, and the date the non-resident transferred to the U.S. Submit the relationship between the U.S. application and the foreign employer, i.e., joint venture, subsidiary, affiliate, etc.
Present documentation that the U.S. employer has been in business for a minimum of one year prior to the application filing.
What eligibility conditions should be identified in the case of EB-2 Alien of Exceptional Ability on Form I-140?
The I-140 application for Alien of Exceptional Ability should include the following documents:
Identify which of the six regulatory conditions the non-resident is attempting to fulfill and the relevant documentation for each individual condition.
Submit documentation that the non-resident meets the minimum experience and education requirements defined in the supporting labor certification if filing under Form I-140 Part 2, option D.
What eligibility conditions should be identified in the case of Member of the Professions Holding an Advanced Degree or an Alien of Exceptional Ability, requesting a National Interest Waiver Alien of Exceptional Ability (EB-2-NIW) on Form I-140?
The I-140 application for Member of the Professions Holding an Advanced Degree or an Alien of Exceptional Ability, requesting a National Interest Waiver Alien of Exceptional Ability should include the following documents:
Identify how the non-resident qualifies for classification as a member of the professions with an advanced degree (e.g., the non-resident qualifies as an alien of exceptional ability, the non-resident holds an advanced degree, or the non-resident holds a Bachelor’s Degree in addition to five years of increasing experience).
Identify each of the three conditions (e.g., national scope, national interest, or intrinsic merit) that must be fulfilled and provide the documentation needed to fulfill each condition. (See 8 C.F.R. 204.5(k) and Matter of New York State Department of Transportation (NYSDOT), 22 IN Dec. 3363, Int. Dec. 3363 (Act. Assoc. Comm. 1998).
Can a petition be withdrawn?
The answer is yes. The applicant or the Form G-28 representative can send a letter to USCIS requesting to withdraw the I-140 petition.
How can a petitioner request the withdrawal of a Form I-140?
The applicant or the Form G-28 representative can send a letter to USCIS requesting to withdraw the I-140 petition.
Withdrawal requests should include:
A statement indicating that the Form I-140 applicant wishes to withdraw the application;
The Form I-140 application receipt number;
The name, address and phone number of the applicant;
The name of the non-resident;
The non-resident registration number of the beneficiary, if known;
The applicant’s signature or the Form G-28 representative’s signature.
How can I apply for adjustment of status after Form I-140 approval?
After the application for employment-based immigration is approved, Application Form I-485, application for adjustment of status, should be filed. The form, when filed, must be accompanied by items such as affidavit of support, physical examination record, letter of employment, photos, etc.
Rules on adjustment of status became much more restricted with the change of immigration regulations. Visa records must be submitted to prove both your constant lawful status and your family members’ constant lawful status since entering the U.S. For the people whose status expired before their application for immigration was approved, this can be a serious problem.
May I leave my current job if my self-petitioned I-140 got approved, and my I-485 is still pending?
The job change will not affect the pending I-485 for self-petitioned NIW or EB-1A applications. The I-485 petitioner has a broader flexibility due to the unusual nature of their application. The I-485 petition is not dependent upon which employer you work for during the process.
But it does not mean that you can work in any job you prefer after the I-485 is submitted. You need to prove and maintain the required qualifications for EB-1A applications, i.e., you must still work in the same field of expertise as the time the I-140 was filed. If you then get an interview for the I-485 application or a Request for Evidence (RFE), and you no longer have the qualifications set in the original I-140 petition, your I-485 may be rejected.
If my employer sponsored my I-140 petition, may I change employers when I-485 is pending?
The answer is yes. Even though your employer sponsored your application, a non-resident beneficiary of an approved or pending Form I-140 whose application for Adjustment of Status (Form I-485) has been filed and remains undecided for 180 days or more, and who seeks to change to a new job that is the same or similar professional classification, may submit a request to “port” under AC21.
Who is eligible to submit a request to change employers under INA 204(j) when I-485 is pending, which is commonly known as “porting” under INA 204(j)?
A non-resident beneficiary of an approved or pending Form I-140 who seeks to change to a new job that is the same or similar professional classification and whose application for Adjustment of Status (Form I-485) has been filed and remains undecided for 180 days or more, may submit a request to “port“ under AC21.
How can a non-resident beneficiary submit a request to change employers under INA 204(j)?
The applicant should follow these steps to file a request to change employers under INA 204(j):
A non-resident beneficiary may supplement the Form I-485 with evidence concerning the new job offer that forms the basis of the INA 204(j) transfer request.
The non-resident beneficiary or the Form G-28 representative for the Form I-485 petition must submit a letter from the new proposed permanent employer detailing the job title and duties of the position, the date the non-resident beneficiary work begins, the offered wage or salary, and the minimum educational or training requirements. The letter should be issued and signed by the person within the new employer’s company who is authorized to offer permanent employment.
A copy of the Form I-140 receipt or approval notice and a copy of the Form I-485 receipt notice should be submitted to locate the non-resident beneficiary’s case file and to verify that the petition has been pending for at least 180 days.
May a non-resident beneficiary request to “port” to a different employer or job under INA 204(j) if his or her Form I-140 is still pending?
The answer is yes, a non-resident beneficiary may request to change employers under INA 204(j) while the Form I-140 application is pending (in the case of concurrent filing of I-140 and I-485), as long as his or her Form I-485 adjustment application has been pending for at least 180 days. However, in order for the Form I-140 application to “remain valid” for INA 204(j) purposes, it must be determined that the application was “valid” when filed, i.e., that the I-140 application was filed on behalf of a non-resident who was eligible for the employment-based classification and that the application contained a valid job offer when it was filed. Therefore, the application must be approved prior to a favorable determination regarding a portability request made under INA 204(j).
How does USCIS determine if an I-140 was valid when processing pending I-140 petitions that were concurrently filed with I-485 applications in the portability context?
If documentation is submitted to USCIS that a non-resident seeks to adjust status based on a new job offer under INA 204(j), then, the officer will first determine if the non-resident is the beneficiary of an approved I-140 petition. If he/she is not, the officer will determine whether the unapproved, pending I-140 was approvable when filed (which may involve issuing an RFE if the I-140 cannot be approved without further documentation). If the I-140 can be approved, the officer will decide the adjustment of status petition and also determine if the new job is the same or similar for I-140 portability purposes.
Can a successor employer use a predecessor employer’s approved labor certification to file an I-140 for the non-resident beneficiary named on the labor certification?
The answer is yes. But a Successor-In-Interest (SII) connection between the successor employer and the predecessor employer must be proven.
How can a successor employer prove a successor-in-interest (SII) connection with a predecessor employer so that employer’s approved labor certification can be used when filing a I-140 petition for the non-resident beneficiary listed on the labor certification?
The most recent USCIS statement specifies the following aspects to consider when deciding if a legal SII exists:
The job proposed by the successor must be equal to the job first proposed on the labor certification;
The successor has to verify detailed eligibility, including providing the required documentation from the predecessor employer, such as documentation of the predecessor’s capacity to pay the proposed wage on the filing date of the labor certification with DOL, and;
The applicant must fully document the transfer and assumption of ownership of the predecessor by the successor for a legal successor-in-interest connection to occur between the predecessor that filed the labor certification and the successor.
When changing employers, can a non-resident beneficiary hold the priority date that was approved previously for the Form I-140 application?
Usually, the non-resident beneficiary may keep the predecessor’s priority date on the approved Form I-140 application. A non-resident beneficiary can keep the priority date of an approved E12 (Outstanding Researcher or Professor) or E13 (Multinational Manager or Executive) application for petitions filed later for the non-resident by the new employer in the E12 or E13 categories.
If the title for the position with the successor company differs from the title noted in the predecessor company’s labor certification, is the SII analysis negatively affected?
Officers will look at the duties of the job to decide if the job is the same when deciding if the current job offer is the same as the job offer listed on the labor certification. Changes such as using a different computer software or a change in job title usually have no impact on the determination. In addition, changes in salary because of pay increases over time do not affect the job decision.
What is a “Request for Additional Evidence”?
There are times when the USCIS has not determined that the non-resident petitioning category has proven that a petitioner is qualified for the category. In these cases, a “Request for Additional Evidence” or “Request for Evidence (RFE)” is generally submitted when trying to obtain evidence that the USCIS does not have. A petitioner should always submit a convincing case that can be approved without the need to request further evidence. Sometimes even a strong case receives a “Request for Additional Evidence” depending on how the USCIS officer responds to the submitted evidence.
It is essential to competently and correctly reply to the USCIS Request for Evidence since an inaccurate response to the RFE will result in denial of the I-140 application
Can I concurrently file I-140 with I-485?
The answer is yes, the USCIS permits simultaneous filing of Form I-140 and Form I-485, adjustment of status application. However, the first three preference groups (EB-1, EB-2, and EB-3) are the only ones qualified for simultaneous filing.
Additionally, if a visa number later becomes available, the I-485 can be filed while the I-140 is pending. If filed with the I-485, the concurrent filing rule permits the USCIS to issue an Advance Parole Travel Authorization and a Employment Authorization Document (EAD) and advance parole travel authorization while the I-140 application is pending.
Will both petitions be determined simultaneously if I file I-140 concurrently with I-485? What if my visa is not current?
The USCIS has indicated that the decision of a concurrently-filed Form I-140 is independent to the status of the Form I-485. If a visa becomes unobtainable after the simultaneous filing, the guidelines allow the USCIS to make a determination and approve the visa applications separately. For these cases, the I-485 will be on hold until a visa number becomes available and the I-140 visa application will be approved.
In case the I-485 is on hold after I-140 approval, can I file EAD and/or AP?
The answer is yes. In I-140 and concurrent filing, applicants can apply for temporary benefits such as advance parole and employment authorization while an I-485 application is on hold.
What are the primary advantages of concurrent filing?
Some advantages of concurrent filing of I-140 and I-485 are:
File I-485 earlier: You, your spouse, and your unmarried children under 21 can file I-485 petitions (i.e., green card applications) concurrently with when you or your employer file an I-140 (Immigrant Petition for Alien Worker). Usually, the employer files the I-140, but your I-140 can be self-filed under certain categories such as Aliens of Extraordinary Ability and National Interest Waiver. In addition, while a previously filed I-140 is still undecided, the concurrent filing rule permits you, your spouse, and children to file your I-485s.
Obtain Employment Authorization Documents (EAD) and Advance Parole travel documents (AP): When you file I-485s for both you and your family members, you may also file for Employment Authorization Documents (EADs) and Advance Parole travel documents (AP). EAD availability is a key advantage for spouses who cannot work legally (i.e., they do not have a J-1, O-1, H-1B, etc.). Advance Parole can be a key advantage for those who cannot travel (e.g., out of status) or who do not want to get stuck at an overseas U.S. consulate because of security or other problems while applying for a new H-1B visa.
Might be able to leave job earlier: Just because the principal beneficiary has an EAD does not mean you can leave your current job. After the I-485 has been pending for 180 days, the portability provision makes it possible for the beneficiary to leave his or her current employer to take a new job in the same or similar job classification. However, you should be careful before leaving your current job because there are still unresolved portability problems. If you leave your current job too early, all I-485s for you and your family may be denied. In some cases such as National Interest Waiver or Aliens of Extraordinary Ability, you could leave your employer before the I-485 is filed. Before getting your green card, it is important to get legal advice before leaving your job since these issues are complex.
What happens to the I-485 filing if my I-140 is rejected?
The associated I-485 will be rejected if the concurrent I-140 application is rejected.